Bombay High Court
Jaysingh Wadhu Singh, (Through His Next ... vs State Of Maharashtra, (Through Asstt. ... on 15 November, 2000
Equivalent citations: 2001BOMCR(CRI)~, (2001)1BOMLR205, 2001CRILJ456, 2001(3)MHLJ208
Author: R.M. Lodha
Bench: R.M. Lodha
JUDGMENT G. D. Patil, J.
1. This Petition is filed under Articles 226 and 227 of the Constitution of India by the Petitioner wherein the constitutional validity of some of the provisions of the Maharashtra Control of Organized Crime Act, 1999 (hereinafter referred to as the M.C.O.C. Act) is challenged. The Petitioner also prays for direction to the State Government to frame appropriate rules and guidelines for preventing misuse of the provisions of the M.C.O.C. Act. The other reliefs claimed are : (i) a writ of prohibition prohibiting the respondents from relying upon the telephonic conversations dated 25th March, 1999, 9th April, 1999 and 10th April, 1999 against the Petitioner for invoking the provisions of the M.C.O.C. Act; (ii) to quash and set aside the order dated 12th May, 2000 passed by Respondent No. 3 - Additional Chief Secretary in the Home Department of the State of Maharashtra; (iii) to quash and set aside the orders dated 18th April, 2000 and 25th August, 2000 of the Learned Special Judge under the M.C.O.C. Act; and further (iv) to set aside the order dated 15th September. 2000 of the Learned Special Judge and also to transfer the case of the Petitioner to regular Court; and
(v) to release the Petitioner on bail pending trial assailing the order dated 28th August, 2000 rejecting the petitioner's application for release on bail. The factual matrix in brief resulting into filing of this petition before us is as follows :
The Assistant Commissioner of Police, one Ambadas Pote, who was assigned to monitor the bails from Karachi based Chhota Shakil heading an organised crime syndicate had submitted confidential report to the Additional Chief Secretary, Home Department of Government of Maharashtra for intercepting all telephonic information from Karachi based Chhota Shakil from Telephone No. 8057755 allegedly belonging to one Advocate Mr. Liyakatali Shaikh, who is no more alive. By Order No. 41 of 1999 dated 6th February, 1999, interception of information from Telephone No. 8057755 was accordingly permitted in exercise of the powers under Section 5(2) of the Indian Telegraph Act by the Additional Chief Secretary one Mr. K. C. Srivastava. The conversation on this telephone number has been allegedly intercepted on 25th March. 1999 and the said conversation was in between the Advocate Liyakatali Shaikh, J. W. Singh - the Petitioner and Chhota Shakil. Earlier on 12th March, 1999, by Order No. 68 of 1999 issued by Respondent No. 3 under Section 5(2) of the Indian Telegraph Act, the information from Respondent Nos. 1 and 2 on Mobile No. 9821164606 to Liyakatali Shaikh was permitted to be intercepted and connected to Police Mobile No. 9821106076. In the meantime, the Government of Maharashtra promulgated the Maharashtra Control of Organized Crime (Ordinance), 1999, on 24th February, 1999 which, later on, is replaced by Maharashtra Act No. XXX of 1999 and called as M.C.O.C. Act. 1999 which is deemed to have come into force on the 24th February, 1999.
2. On 2nd April, 1999, a complaint was received at Sion Police Station from one Prabhlinsingh, son of Sardarsingh @ Sardarsingh Abrol, having his shop at Sion under the name of M/s. Bawa Tyre Centre alleging that he has received a threatening call from unknown person, claiming his name as Pydhuni, who had told the complainant's son that he was a person linked to Chhota Shakil group and further that the complainant should clear the account of J. W. Singh within 48 hours falling which his shop would be closed and he would face serious consequences if Chhota Shakil is not contacted on phone for settling the bill. He gave, according to the complainant, the telephone number of Chhota Shakil which was also available with the Sion Police Station. On receipt of the complaint, the Sion Police Station registered it as N.C. No. 267 of 1999. On 3rd April, 1999, the police protection was sought by Sardarsingh @ Dara which was provided to him. On 9th April, 1999 and 10th April, 1999, conversations on Telephone No. 8057755 of the Advocate Liyakatali were intercepted. On 9th April, 1999, Chhota Shakil alleged to have talked to Advocate Liyakatali Shaikh while on 10th April, 1999 a talk had taken place in between the petitioner - J. W. Singh and Advocate Liyakatali Shaikh. The Order No. 40 of 1999 of the Additional Chief Secretary. Respondent No. 3, initially was to remain in force till 6th April, 1999. This period later on continued by Order No. 104 of 1999 dated 3rd April, 1999 till 4th June, 1999 and thereafter by different orders upto 22nd December, 1999. Similarly, Order No. 68 of 1999 pertaining to Mobile No. 98260006 had allegedly remained in force till 8th April, 1999. It was continued upto 29th May, 1999 by Order No. 95 of 1999 dated 9th April, 1999 and thereafter by various orders upto 23rd December, 1999. On 3rd April, 1999, statements of Sardarsingh so also his son - P.W. 29 were recorded by the Sion Police Station. Confidential Reports were prepared as regards the interceptions of telephone conversation on 25th March. 1999, 9th April, 1999 and 10th April, 1999 and after obtaining approval from the Joint Commissioner of Police, the same were sent to the Commissioner of Police. The Commissioner of Police then submitted his report to the Hon'ble Chief Justice of this Court. By notification dated 26th August, 1999, published in the Maharashtra Government Gazette, the Government of Maharashtra in exercise of powers conferred upon it under the M.C.O.C. Act appointed the Principal Secretary (Appeal and Security) as Competent Authority for the purpose of Section 14 of the M.C.O.C. Act. On 1st October, 1999, a confidential letter was addressed to the Additional Registrar of this Court for asking permission to register First Information Report against the Petitioner J. W. Singh, who was then under suspension. Accordingly, permission was granted by this Court and communicated the same to the D.C.B., C.I.D., Mumbai. On 1st November. 1999, a complaint was lodged by ACP Ambadas Pole whereupon F.I.R. No. 298 of 1999 was registered by the Sion Police Station against the petitioner J. W. Singh and others viz. Liyakatali Shaikh, Chhota Shakil and one unknown person nicknamed as Pydhuni for the offence punishable under Section 387 r/w 120-B of the Indian Penal Code. It is alleged that during the course of investigation of this offence, it was revealed that there was a prima facie case for proceeding against the petitioner and others under the provisions of M.C.O.C. Act and therefore, a prior approval was sought from the Additional Police Commissioner. The Additional Police Commissioner granted approval in exercise of powers conferred upon him under section 23(1)(a) of the M.C.O.C. Act by his order dated 18th November, 1999. The Investigating Officer then added the offence under section 3(1)(a), (i)(ii)(2) and (4) to the offence registered under the F.I.R. of C.R. No. 298 of 1999 of M.C.O.C. Act. The Investigating Officer then proceeded further on 4th December, 1999, and the Petitioner's house was searched. The Petitioner was then absconding. The Petitioner filed Criminal Writ Petition No. 2139 of 1999 before this Court praying for quashing of the proceedings arising from the F.I.R. of C.R. No. 298 of 1999 registered against him at Sion Police Station for the offence punishable under section 387 read with 120-B of the Indian Penal Code and Section 3(i)(ii) of the M.C.O.C. Act. This petition was dismissed in limine by this Court's order dated 17th December, 1999. The Court, in paragraphs 3 and 4 of the said order, has stated as under :
"3. The averments in the F.I.R. in brief are as under :-
The Petitioner was a member of a chit fund run by one Sardar Singh alias Dara Proprietor and owner of Baba Tyres in Sion (West). Mumbai Rupees 35 to 40 Lakhs of the Petitioner were not paid by Dara. Consequently, he enlisted the services of an Advocate one Liyakat Shaikh, who since has been killed. Liyakat Shaikh got in touch with Chhota Shakeel gang operating from Pakistan. The said contact resulted in three conversations on mobile, which were tape-recorded by the police and are verbatim reproduced in the F.I.R.
The first conversation which is dated 25.3.1999, in short, is that the petitioner told Chhota Shakeel that 35 to 40 Lacs due to him from one Dara were not paid by Dara to him and he wanted the said payment to be made to him.
Chhota Shakeel told the petitioner not to worry he will look into the matter and asked him his phone number which the petitioner gave to him. He told the petitioner that he will ring him in two to three days.
A perusal of the first conversation also shows that Chhota Shakeel told the petitioner that a number of persons, including some men of his, were being killed by the police in fake encounters and the judiciary was behaving like a mute onlooker. The conversation further shows that the Petitioner deprecated this but replied that he could only help him if a specific matter came up before him.
The second conversation, which is between Chhota Shakeel and Advocate Liyakatali Shaikh, is dated 9.4.1999. During it Liyakat Shaikh told Chhota Shakeel that there was a murder case before the Petitioner, in which two persons named Subhash and Shekhar were accused and the case has been acquitted. Hearing this Chhota Shakeel is said to have told Liyakat Shaikh Yes. Yes good.
The third conversation which is dated 10.4.1999 is between Liyakat Shaikh and the Petitioner. Its perusal shows that the Petitioner asked Liyakat Shaikh whether telephone had come and gave his mobile number to Liyakat Shaikh.
4. According to the prosecution Subhash and Shekar referred to in the conversation dated 9.4.1999 were men of Chhota Shakeel."
3. This Court then referred to rival submissions made by learned counsel for the Petitioner and the Public Prosecutor in paragraph 10 which are as under :-
"It is well-settled that the veracity of the averments, sufficiency and dependability of evidence and the probability of conviction are questions, which this Court does not examine in its jurisdiction under Article 226 of the Constitution of India and Section 482 of the Code of Criminal Procedure in deciding the question whether the F.I.R. and the proceedings arising from it deserved to be quashed."
4. The Petitioner had challenged this order by filing Special Leave Petition before the Apex Court which was dismissed on 31st January, 2000. For the reasons stated therein, the Apex Court observed that it would not consider any issue which had not been raised before the High Court.
5. The Special Judge was required to issue proclamation on 25th February, 1999 since the Petitioner was absconding. The Petitioner filed Criminal Writ Petition No. 490 of 2000 before this Court praying for quashing of the proceedings in the F.I.R. of C.R. No. 298 of 1999. Initially the objection was raised regarding the maintainability of the petition on the ground that the points raised in the Criminal Writ Petition No. 490 of 2000 had already been taken in Criminal Writ Petition No. 2139 of 1999, which has been dismissed and the S.L.P. against it has also been rejected by the Apex Court on 31st January, 2000. The Division Bench of this Court in paragraph 2 of its order dated 7th April, 2000 in Criminal Writ Petition No. 490 of 2000 has stated as under :-
"2. Since the Petitioner has surrendered before the Special Court and is currently under police remand and the questions agitated in the present Petition can also be equally effectively decided by the Special Court and both the Petitioner's counsel and the learned Advocate General have no objection if they are decided by the Special Court, we feel that the better course would be that the said questions are decided by the Special Court. The said questions are kept open."
6. After expressing this view, learned counsel for the Petitioner prayed for withdrawal of the said petition i.e. Criminal Writ Petition No. 490 of 2000 and having been permitted to withdraw the same, as agreed before the Division Bench of this Court in the said Writ Petition No. 490 of 2000, the Petitioner made an application being Misc. Application No. 76 of 2000 which also was decided by the learned Special Judge on 18th April, 2000 rejecting the Petitioner's contention that the provisions of M.C.O.C. Act were not applicable by observing in paragraph 17 as under :-
"17. The material which appears to have been collected in the course of investigation if read and believed as true at this stage, it thus indicate that the offence of abetment of an Act preparatory to an organised crime i.e. extortion of huge amount by and on behalf of organised crime syndicate was committed by the accused presuming that the allegations remain unrebutted and therefore in my opinion, provisions of M.C.O.C. Act are applicable and are attracted in this case."
This order is under challenge before this Court.
7. The Petitioner had also filed an application for bail being Criminal Bail Application No. 13 of 2000. This application was rejected on 25th April, 2000. It appears that since the Special Judge in his order dated 18th April, 2000 on the Petitioner's Misc. Application No. 76 of 2000 had observed that the ex post facto sanction under the provisions of section 14(10) could be obtained and the Competent Authority can consider such an application, Respondent No. 3 was moved in the matter, who resultantly on 12th May, 2000 by two separate orders of even dates accorded ex post facto approval of interception of the said two telephones effected on 25th March, 1999, 9th April, 1999 and 10th April, 1999. On the report dated 29th May, 2000 of the ACP, Matunga Division, Mumbai, dated 9th June. 2000, the Commissioner of Police in exercise of powers conferred upon him under section 3(2) of the M.C.O.C. Act on 9th June, 2000 accorded sanction for prosecution of the Petitioner for the offence punishable under Section 3(1)(ii)(2)(4) of the M.C.O.C. Act for taking cognizance by the Designated Court under the M.C.O.C. Act. This Court also gave No Objection to prosecute against the Petitioner on 16th June, 2000. The charge-sheet was ultimately filed before the Special Court on 12th June, 2000. The sanction for taking cognizance as required under Section 19 of the Prevention of Corruption Act, 1988 was accorded by the Government on 8th August, 2000. The sanction order was produced before the Special Court on 9th August, 2000, a copy of which was furnished to the defence on that date and the learned Special Public Prosecutor clarified that prosecution would not file another charge-sheet as, under section 7 of the M.C.O.C. Act, the Special Court can try the accused for the offences punishable under other law also. The Special Court then heard the Special Public Prosecutor on the opening address as contemplated under section 226 of the Code of Criminal Procedure so also the reply from counsel for the accused, and ultimately by an order dated 25th August, 2000, it held that the State cannot be prevented from proving the accusation of offences punishable under section 3(2) of the M.C.O.C. Act read with Section 387 of the Indian Penal Code read further with section 120-B of the Indian Penal Code and connected offences under section 24 of the M.C.O.C. Act read with section 13(1) clause (d)(i) and (ii) of the Prevention of Corruption Act. 1988 and thereupon kept the case for framing of charges. As already indicated, the said order dated 25th August, 2000 is also under challenge before this Court by way of present petition which was filed on 4th September, 2000. In the meantime, the Petitioner's application for bail came to be rejected on 28th August, 2000. Basically, since the challenge in the petition as filed was to the validity of certain provisions of the M.C.O.C. Act it was also to be taken into consideration along with other challenges raised and hence on hearing learned Counsel for the Petitioner and the learned Public Prosecutor, we granted Rule in this Petition on 6th September, 2000 making it returnable on 26th September, 2000 and rejecting the prayer for interim relief. Before this petition came up for hearing after 6th September, 2000, on 15th September. 2000, the learned Special Judge framed charges as against the Accused including the Petitioner for having committed the offences; (a) punishable under section 3(2) read with section 2(1)(a) of the M.C.O.C. Act read further with 120-B and Section 109 of the Indian Penal Code: (b) punishable under section 120-B read with section 387 of the Indian Penal Code; (c) punishable under section 13(1)(d)(i)(ii) of the Prevention of Corruption Act, 1988 so also punishable under section 3(5) of the M.C.O.C. Act read with Section 120-B of the Indian Penal Code; and lastly (d) punishable under section 24 of the M.C.O.C. Act, Naturally now this order of framing of charges has also been challenged before us in this petition.
8. Though, as already indicated, a challenge was raised to the constitutional validity of the provisions of the M.C.O.C. Act and some further certain directions were sought to Government for framing appropriate rules and guidelines for preventing the misuse of the provisions of the M.C.O.C. Act, during the course of hearing, Mr. Manohar, learned Senior Counsel appearing for the Petitioner made it clear that he is not pressing this aspect for consideration before us and is restricting the claim in the petition to the other reliefs only. Since such a submission had come up before us at the time of final hearing of the petition, after the rule was granted and further since the earlier two petitions were dealt with by the Division Bench of this Court and the matter had also gone upto the Apex Court, despite the submission made by the learned Advocate General as regards the maintainability of the instant petition before us as filed and pressed, we heard Mr. Manohar, learned senior counsel and Mr. Mundergi, the learned counsel for the Petitioner on the aspects other than those relating to the constitutional validity of some of the provisions of the M.C.O.C. Act and regarding direction to the State Government for framing appropriate rules and guidelines for preventing the misuse of the provisions of the M.C.O.C. Act. We also heard the learned Advocate General.
9. The contentions raised in the petition so also in the written submissions filed on behalf of the Petitioner and further in the oral submissions by learned counsel for the Petitioner in substance are as follows :-
(I) Charges framed under M.C.O.C. Act are required to be quashed and the proceedings before the Designated Court in that regard cannot be permitted to be continued as they are without jurisdiction for the reason;
(a) that the entire evidence of the prosecution under the M.C.O.C. Act is an interception of the telephonic conversation made on 25th March, 1999, 9th April, 1999 and 10th April, 1999 which cannot be held to be a piece of admissible evidence. In absence of the admissible evidence for framing of charges under the M.C.O.C. Act, and there being no material at all for proceeding against the Petitioner under the M.C.O.C. Act allowing the proceedings to be continued would be an abuse of process of Court and ends of justice would require that the proceedings should be quashed discharging the accused;
(II) prosecution of the petitioner and the charge in that regard framed under section 13 of the Prevention of Corruption Act. 1988 are also illegal for the reasons:
(a) that the Special Judge under the M.C.O.C. Act cannot take cognizance of the Prevention of Corruption Act, 1988 as the same are within exclusive jurisdiction of the Special Judge under the Prevention of Corruption Act, 1988;
(b) that basic ingredient of the offence punishable under section 13(1)(d)(i)(ii), if the accused obtains for himself or for any other persons any valuable thing or pecuniary advantage, is being not made out by any piece of evidence so far obtained by the prosecution and the sanction order is silent on this aspect:
(c) that Section 19 of the Prevention of Corruption Act, 1988 provides that no Court shall take cognizance of an offence punishable under section 13 except with the previous sanction of the State Government which has been obtained in the petitioner's case only on 8th August, 2000 after filing the charge on 12th February, 2000 and in any case without filing the supplementary charge-sheet after obtaining the order of sanction and that the Special Public Prosecutor has categorically made a statement on 9th August, 2000 before the Special Court that prosecution would not file another charge-sheet;
(III) charge framed for the offence punishable under section 387 cannot be borne out from the N.C. complaint dated 2nd April, 1999 lodged in the Sion Police Station: the statements dated 3rd April, 1999 lodged by the Complainant and his son read with the report dated 5th April, 1999 of the Sion Police Station and as at the most the said N.C. complaint may be said to be making out an offence punishable under section 385 only, and that the offence punishable under section 387 of the Indian Penal Code has been registered only with an object of attributing an offence to the Petitioner under the provisions of the M.C.O.C. Act.
To the preliminary objection raised by the learned Advocate General regarding maintainability of the petition in view of the earlier orders of this Court in Criminal Writ Petition No. 2139 of 1999, it was contended by learned counsel for the Petitioner that the aspect of applicability of the M.C.O.C. Act since it has specifically been kept open by this Court in its subsequent order dated 7th April, 2000 passed in Criminal Writ Petition No. 490 of 2000, the objection in that regard as raised by the learned Advocate General cannot be accepted. Moreover, the challenge to the earlier orders by the petitioner was at the stage of investigation only and now since the charge-sheet has been filed, the petitioner was entitled to raise all challenges including that of the applicability of the provisions of the M.C.O.C. Act and framing of charges thereunder by the Government.
10. The learned Advocate General apart from the preliminary objection as regards the maintainability of the petition, as indicated already hereinabove, contended that none of the grounds raised by the Petitioner warrants interference by this Court with the orders passed by the learned Special Judge which are impugned in the petition and the petitioner cannot be said to be entitled to any relief including that of transferring the case from the Court of Special Judge to the regular Court and/or releasing him on bail. Making elaborate submissions, which are being taken note of in the discussion to be followed along with this decision cited by both the sides in support of their respective contentions, the learned Advocate General submitted that the petition was liable to be dismissed.
11. As already indicated, the learned Advocate General raised objection as regards to the maintainability of the petition on two counts : the first one being based on filing of the Criminal Writ Petition No. 2139 of 1999 by the Petitioner and the second one being on the basis of the instant petition having now been restricted on the grounds other than those on the validity of some of the provisions of M.C.O.C. Act as initially incorporated in the writ petition. We have already indicated as to how and in what circumstances rule came to be granted, and the claim was ultimately restricted in the course of hearing only insofar as the other reliefs are concerned and, in which circumstances, we heard learned counsel for the parties on the aspects other than those related to the validity of some of the provisions of the M.C.O.C. Act. Insofar as the filing of the Criminal Writ Petition No. 2139 of 1999 is concerned, it was rightly pointed out by learned counsel for the petitioner that the applicability of the M.C.O.C. Act has been kept open by this Court by order dated 7th April, 2000 passed in Criminal Writ Petition No. 490 of 2000. Moreover, we concur with the submissions of learned counsel that the present position has been filed after filing of the charge-sheet and the petitioner was entitled to raise all challenges including that of the applicability of some of the provisions of the M.C.O.C. Act and framing of criminal charges therein. In this view of the matter, we see no merit in the preliminary objection raised by the learned Advocate General regarding maintainability of the instant petition before us.
12. Insofar as the first submission raised by learned counsel for the petitioner is concerned, it is difficult for us to accept that there is no material at all for framing the charge and proceeding against the petitioner under the M.C.O.C. Act, inasmuch as, the entire evidence in this regard consists of interception of the telephonic conversation cannot be held to be a piece of admissible evidence. While elaborating this submission, Mr. Manohar, learned Senior Counsel appearing for the petitioner, contended that the first order dated 6th February, 1999 passed by the Additional Chief Secretary, Home Department, has been passed in his capacity as an officer specially authorised by the Government of Maharashtra under Section 5(2) of the Indian Telegraph Act, 1885 and the interception of the Telephone No. 805775 has been permitted in contravention of all directions given by the Apex Court in its decision reported in the case of People's Union for Civil Liberties (P.U.C.L.) v. Union of India & Anr., for the reasons stated as under:
(a) Vide Direction 1, no copy of the order for phone tapping was sent to the Review Committee within 1 week of the passing of the Order.
(b) Vide Direction 2, the Order was not addressed to a particular person but rather it is a blanket order authorizing everyone or none to intercept and is silent about how the intercepted material is to be disclosed and to whom.
(c) Vide Direction 3, there is no satisfaction on the face of the order that the information cannot be obtained by any other means.
(d) Vide Direction 4, no address or name of the particular person is mentioned save and except the telephone number to be intercepted.
13. It was further contended that under Direction No. 5, as appearing in paragraph 31 of this P.U.C.L. case (supra), the order issued under section 5(2) unless renewed ceases, to have effect at the end of a period of two months from the date of issue, and in the instant case, this direction has been violated in two ways, which are as under :
(i) The order dated 4th June. 1999 was to remain in effect till 2nd August, 1999 and was renewed by an order dated 1st September, 1999; which in effect means that there was no order in force for the intervening period;
(ii) The total period of the interception order was from 6th February, 1999 to 3rd December, 1999 for a period of 10 1/2 months clearly in breach of the direction that the total period for the operation of the order shall not exceed 6 months.
14. It was further submitted that, as contemplated by Direction Nos. 6, 7 and 8, no material was forthcoming from the order as to how the material was to be used and the records to be maintained. Further that there was no orders of the Review Committee within two months as provided in Direction 9a and that, in view of the express contravention of section 5(2) of the Indian Telegraph Act, the intercepted material was necessary to be directed to be destroyed by making an order by the Review Committee within two months. It is submitted that if it was so required, as per the Apex Court decision, the interception made of the Telephone No. 8057755 under the authority of the order dated 6th April, 1999 continued from time to time by different orders, would be of no avail to the prosecution for filing of the charge-sheet and, in any case to the Court for framing the charge and conducting the prosecution on its basis. The tapping of the telephone under section 5(2) of the Indian Telegraph Act. 1885 is in breach of all the directions laid down by the Apex Court in P.U.C.L. case (supra).
15. It was then contended that after the coming into force of the M.C.O.C. Ordinance vide order dated 24th February, 1999, the first order bearing No. 68 of 1999 in relation to the interception of the Mobile Phone No. 9821164606 of Liyakat Ali was passed by the Additional Chief Secretary, Home Department, on 12th March. 1999 in the interest of public order and to prevent incitement of the commission of serious offences. This order was to remain in force till 8th April. 1999, and by Order No. 95 of 1999 passed on 1st April. 1999 it was ordered to be remained in force till 24th May. 1999 and by the orders passed from time to time thereafter, the interception was permitted upto 23rd November. 1999. The order dated 12th March, 1999 and its extension from time to time, it was submitted, suffers from the same infirmities as the order dated 6th November, 1999 suffers. It was contended that these orders were not by the competent authority under the M.C.O.C. Act and therefore cannot be called in aid for the prosecution under the M.C.O.C. Act. It was pointed out that in the affidavit dated 10th October. 2000 the Respondents have admitted that the Additional Chief Secretary, who had granted authorisation under the Indian Telegraph Act, was not the Competent Authority designated under section 13 of the M.C.O.C. Act.
16. It was then contended that the provisions of Section 14 of the M.C.O.C. Act in relation to the authorisation for interception of the telephone were not invoked till 12th May. 2000 as it was for the first time by 2 orders dated 12th May, 2000, bearing Orders No. 1 of 2000 and 2 of 2000, the Additional Chief Secretary (Home), accorded ex post facto approval of the telephonic interceptions already made of Mobile Phone No. 9821164606 and Telephone No. 8057755. This ex post facto approval for the telephonic interception granted by the Additional Chief Secretary (Home) on 12th May, 2000 is assailed to be bad in law and total non est for the reasons stated hereinbelow :
(a) The approval is not by the Competent Authority under the M.C.O.C. Act and as such is a wastepaper document; this being a case of power conferred upon one authority being really exercised by another.
(b) The approval is not on the satisfaction of the authority whosoever it may be but is at the dictates of the Special Judge vide order dated 18th April, 2000.
(c) No application in writing under section 14(1) which is required to contain the information as mandated under Section 14(2) is made by a Police Officer to the Competent Authority.
(d) Even for an order of approval which is to be made under Section 14(4) if the Act, strict compliance of sub-sections 5, 6 and 7 of the Act is to be made including the order of the Review Committee under Section 15(3) of the Act.
(e) An approval under Section 14(10) is hedged by legal safeguards and the approval under sub-section 10 is not an approval to the earlier order but is an approval to the interception made by the Police Officers in circumstances provided in Section 14(10) of the Act, the approval to be granted if an application therefor is made under Section 14(1) and (2) of the Act by the Police Officer to the Competent Authority.
(f) An approval could be granted to a lawful interception and by according an approval, an illegal interception cannot be converted into a legal interception.
(g) It is only such evidence collected through the interception strictly in accordance with the letter and spirit of Section 14 of the Act which is admissible in evidence against the Accused otherwise the entire material has to be excluded as inadmissible and could not be used against the Accused, even for framing a charge.
(h) Every letter of Sections 14 and 15 of the Act has been followed in utter breach as if Sections 14 and 15 were not on the statute book and the minimal safeguard to the Accused has been thrown to the wind by the law endorsing Department. The orders dated 12th May, 2000 are so utterly stinking that the person making them is not even aware that he has no authority under Section 14 of the Act and in spite of it recites to the contrary in the Order.
(i) Any other method except via Sections 14 and 15 of the Act is forbidden and strict compliance would be necessary before the Prosecution can rely on such material. The principle of Nazir Ahmed's case followed by the Apex Court in several decisions would be strictly applicable and the material in the shape of intercepted telephonic conversation would be clearly inadmissible in evidence vide State of Punjab v. Baldev Singh,.
(j) The mandatory nature and the strict compliance of Sections 14 and 15 is voiced by the Legislature with the effect of the breach reflected in Section 16 of the M.C.O.C. Act and if the prosecution proposes to rely on this material under the M.C.O.C. Act all concerned officers with the interception are liable to be prosecuted under Section 16.
17. It was then contended that for all the aforesaid reasons, the alleged evidence, as collected by way of interception of the two telephones, will have to be held as unauthorisedly collected and it being clearly inadmissible evidence, it will have to be excluded from consideration and if this is so done, there would be no evidence at all for the purpose of framing of the charge and no material for proceeding against the petitioner at the trial. It was submitted that if this Court comes to the conclusion that allowing the proceeding to be continued would be an abuse of process of the Court or that the ends of justice require that the proceedings ought to be quashed, this Court, which is empowered to quash the entire proceedings exercising its inherent powers under Section 482 of the Code of Criminal Procedure and in its writ jurisdiction under Article 226 of the Constitution of India it has to exercise the same and quash the proceeding to achieve a salutary purpose of meeting the ends of justice and to ensure that the authority given to the police does not de-generate into a weapon of harassment and persecution. It was then submitted having regard to the provisions of Section 227 of the Code of Criminal Procedure that this Court would not only be justified in discharging the accused and quashing the proceedings but was bound to do so. It was then contended that framing of a charge against the accused seriously affect the liberty of a citizen and it was therefore necessary to weed out the inadmissible pieces of evidence projected by the prosecution while framing a charge. Certain decisions in this regard as also on the aspect of framing of a charge have been cited before us and, ultimately, it was submitted that the proceedings before the Designated Court cannot be permitted to be continued as they are without jurisdiction and the order of framing of charge as well as the prosecution be quashed.
18. As already indicated, on 15th September, 2000, the learned Special Judge, inter alia, framed charges for the offences punishable under the M.C.O.C. Act besides the charges for the offences punishable under the Indian Penal Code and Prevention of Corruption Act. The contention is that besides the evidence of interception on 3 ocassions of the two telephones, there is no other evidence for the purposes of framing of the charge under the M.C.O.C. Act and collection of the evidence in the form of interception is vitiated on several counts. This is the case of no evidence at all for framing a charge much less for proceeding further against the Petitioner and as such the charge, as framed, and proceeding against the petitioner be quashed. The order dated 6th February, 1999 and the order dated 12th March, 1999 have been assailed on several grounds and further it is claimed that the material collected under one Act, here the Indian Telegraph Act, cannot be used for proving the offence punishable under another Act wherein a substantial provision has been made in relation to the interception of the talk on telephone, here under section 14 of the M.C.O.C. Act. It is the say of the learned Advocate General that the evidence collected by way of duly authorised interception under section 5(2) of the Indian Telegraph Act was validly obtained and such evidence is admissible in evidence, inasmuch as, the evidence collected under the authorisation of Telegraph Act by way of interception can very well be used for the offence punishable under any other enactments including the M.C.O.C. Act. As already indicated, the interception has been made on 3 occassions, viz. on 25th March, 1999, 9th April, 1999 and 10th April, 1999. The first interception was apparently made under the order dated 12th March, 1999, whereas, the other two interceptions were made under the order dated 6th February, 1999 continued by the order dated 3rd April, 1999 issued by the Additional Chief Secretary (Home) under section 5(2) of the Indian Telegraph Act in the interest of maintaining public safety and to prevent incitement of the commission of serious offences. It is, no doubt, true that the Additional Chief Secretary (Home), who authorised the interceptions on 6th February, 1999, 12th March, 1999 and 3rd April, 1999, has passed the orders as an authority empowered under the Indian Telegraph Act and not as an authority empowered by the Competent Authority as contemplated by section 14 of the M.C.O.C. Act. Sub-section (13) of Section 14 of the M.C.O.C. Act provides that notwithstanding anything in the Code (i.e. Code of Criminal Procedure. 1973 as per Section 2(1)(b) of the M.C.O.C. Act) or in any other law for the time being in force, the evidence collected through the interception of wire, electronic or oral communication under this section shall be admissible as evidence against the accused in the Court during the trial of a case. The Competent Authority, as contemplated by section 14, is the one as per the provisions of section 13 read with section 2(1)(c) appointed as such by the State Government for the purposes of section 14. Sub-section (10) of Section 14 of the M.C.O.C. Act provides as under :
"(10) Notwithstanding anything contained in any other provisions of this section, an Officer not below the rank of Additional Director General of Police who reasonably determines that -
(a) an emergency situation exists that involves :-
(i) immediate danger of death or serious physical injury to any person:
(ii) conspiratorial activities threatening the security or interest of the State;
or
(iii) conspiratorial activities, characteristic of organized crime, that requires a wire, electronic or oral communication to be intercepted before an order from the Competent Authority authorizing such interception can, with due diligence, be obtained, and
(b) there are grounds upon which an order could be issued under this section to authorize such interception, may authorise, in writing, the Investigating Police Officer to intercept such wire, electronic or oral communication, if an application for an order approving the interception is made in accordance with the provisions of sub-section (1) and (2) within forty-eight hours after the interception has occurred, or begins to occur."
19. It is apparent that in a given case, an officer not below the rank of Additional Director General of Police has been empowered to authorize the Investigating Police Officer to intercept such communication on receipt of an application for an order approving the interception in accordance with the provisions of sub-sections (1) and (2) within 48 hours after the interception lias occurred, or begins to occur. Ex post facto authorisation to the interception already made is thus contemplated by the provisions of section 14 of the M.C.O.C. Act. Sub-section (11) of Set Lion 14 reads as under:
"(11) In the absence of an order approving the interception made under subsection (1), such interception shall immediately terminate when the communication sought is obtained or when the application for the order is rejected, whichever is earlier. In the event where an application for permitting interception is rejected under sub-section (4) or an application under sub-section (10) for approval is rejected, or in any other case where the interception is terminated without an order having been issued, the contents of any wire, electronic or oral communication intercepted shall be treated as having been obtained in violation of this section."
20. Apparently, the interception has to be treated as having been obtained in violation of Section 14 in absence of orders referred to in subsection (11) of Section 14 and cannot be called as evidence collected through the interception under section 14 of the M.C.O.C. Act and. therefore, may not be admissible as evidence in terms of the provisions of sub-section (13) of Section 14. There is, however, no debate on the aspect that ex post facto sanction to the interception made can be obtained subsequently and that the aspect of prior approval for interception and the aspect of ex post facto sanction to the interception already made stand on different footing. The debate is restricted to the aspect as to whether the grant of ex post facto would be permissible in case the application for an order approving the interception is made in accordance with the provisions of sub-sections (1) and (2), not within 48 hours after the interception has occurred, or begins to occur, but, thereafter. In the instant matter, such an ex post facto approval has been sought to be obtained and the Additional Chief Secretary (Home), by his two orders dated 12th May, 2000, has accorded ex post facto approval to the telephonic interception. Here again, however, the Additional Chief Secretary (Home) cannot be termed to be a Competent Authority as contemplated by the provisions of section 14 of the M.C.O.C. Act. It is brought to our notice that the State Government by its Notification published in Maharashtra Government Gazette dated 26th August, 1999 has appointed Principal Secretary (Appeal and Security), Home Department. Government of Maharashtra, as Competent Authority for the purpose of section 14 of the M.C.O.C. Act. It is not in dispute that this authority viz. the Principal Secretary (Appeal and Security), Home Department. State of Maharashtra, has not yet granted ex post facto approval for the interception in question before us. It was contended by the learned Advocate General that there was no time period for granting ex post facto sanction and the same can always be applied for, and the affidavit dated 10th October, 2000 has been filed categorically stating therein that such an application would be made to the Competent Authority appointed by the State Government and the procedure under section 14 of the M.C.O.C. would be complied. A question is as to whether, at this juncture, in the circumstances and the assertions, and particularly the submission of the learned Advocate General that it is still open for the prosecution to comply with a mandate of the provisions of the M.C.O.C. Act, it is necessary nr not to go into the legality or otherwise of the orders passed by the Additional Chief Secretary (Home) under which the interceptions were made on 25th March, 1999, 9th April, 1999 and 10th April, 1999 considering several grounds raised in that regard by learned counsel for the petitioner including these orders being in contravention of the directions of the Apex Court in P.U.C.L. case cited supra. We are of the view that in the facts and circumstances of the case, considering the rival submissions made before us, neither it is necessary nor would it be proper for us to go into this aspect at this stage leaving it open to the concerned parties to raise the issues during the trial. The issue ultimately bogs round to the aspect as regards the admissibility or inadmissibility of a piece of evidence. This issue normally has to be decided initially at the stage of trial and not earlier. The Court need not enter into a debatable area of deciding which was the true version at the stage before the trial. In Mustaq Ahmed v. Mohd. Habibur Rehman Faizi, the Apex Court has held as under :
"..... According to the complaint, the respondents had thereby committed breach of trust of Government money. In support of the above allegations made in the complaint copies of the salary statements of the relevant periods were produced. Inspite of the fact that the complaint and the documents annexed thereto clearly made out a, prima facie case for cheating, breach of trust and forgery, the High Court proceeded to consider the version of the respondents given out in their petition filed under Section 482 of the Cr. P.C. vis-a-vis that of the appellant and entered into the debatable area of deciding which of the version was true, - a course wholly impermissible....."
21. The Apex Court in H. P. v. Pirthi Chand cited supra held as under:
"It is thus settled law that the exercise of inherent power of the High Court is an exceptional one. Great care should be taken by the High Court before embarking to scrutinise the F.I.R./charge-sheet/complaint. In deciding whether the case is rarest of rare cases to scuttle the prosecution in its inception, it first has to get into the grip of the matter whether the allegations constitute the offence. It must be remembered that F.I.R. is only an initiation to move the machinery and to investigate into cognizable offence. After the investigation is conducted (sic concluded) and the charge-sheet is laid, the prosecution produces the statements of the witnesses recorded under Section 161 of the Code in support of the charge-sheet. At that stage it is not the function of the Court to weigh the pros and cons of the prosecution case or to consider necessity of strict compliance of the provisions which are considered mandatory and its effect of non-compliance. It would be done after the trial is concluded. The Court has to prima facie consider from the averments in the charge-sheet and the statements of witnesses on the record in support thereof whether Court could take cognizance of the offence on that evidence and proceed further with the trial. If it reaches a conclusion that no cognizable offence is made out, no further act could be done except to quash the charge-sheet. But only in exceptional cases. i.e. in rarest of rare cases of mala fide initiation of the proceedings to wreak private vengeance process of criminal is availed of in laying a complaint or F.I.R. itself does not disclose at all any cognizable offence - the Court may embark upon the consideration thereof and exercise the power.
When the remedy under Section 482 is available, the High Court would be loath and circumspect to exercise its extraordinary power under Article 226 since efficacious remedy under Section 482 of the Code is available. When the Court exercises its inherent power under Section 482, the prime consideration should only be whether the exercise of the power would advance the cause of justice or it would be an abuse of the process of the Court, When Investigating Officer spends considerable time to collect the evidence and places the charge-sheet before the Court, further action should not be short-circuited by resorting to exercise inherent power to quash the charge-sheet. The social stability and order requires to be regulated by proceeding against the offender as it is an offence against the society as a whole. This cardinal principle should always be kept in mind before embarking upon exercising inherent power. ........ When the legislature entrusts the power to the Police Officer to prevent organised commission of the offence or offences involving moral turpitude or crimes of grave nature and are entrusted with power to investigate into the crime in intractable terrains and secretive manner in concert, greater circumspection and care and caution should be borne in mind by the High Court when it exercises its inherent power. Otherwise, the social order and security would be put in jeopardy and to grave risk."
22. The Special Court, on going through the charge-sheet, has already reached to a prima facie satisfaction, may be, inter alia, taking into consideration the interceptions, about involvement of the petitioner in the offence with which he charged including those punishable under the provisions of the M.C.O.C. Act and has noted that as per the charge-sheet filed before the Court, the prosecution proposes to examine 106 witnesses and that, in the circumstances, no one can say that there is no prima facie evidence to frame charge against the accused. The earlier Division Bench of this Court in its order dated 17th December, 1999 in Writ Petition No. 2139 of 1999, the Special Leave Petition filed against which was dismissed by the Apex Court by its order dated 21st January, 2000, has already considered the conversations intercepted, and observed that in its considered view, it cannot be said that prima facie no offences under the M.C.O.C. Act and the other Act are made out against the Petitioner.
23. On this aspect, after going through the conversations intercepted, we concur with the view taken earlier by the Division Bench of this Court in its order. It is not the case where even accepting the averments contained in the F.I.R. and the statements recorded during the investigation, as gospel truth, the offences registered cannot be said to have been made out against the petitioner. The veracity of the averments, sufficiency and dependability of evidence as also the aspect of admissibility, more so the aspect of probability of conviction cannot be given too much weightage at this stage, more particularly in a matter like the instant one, where an answer to the admissibility of the evidence so collected by way of interception depends upon the establishment by proof of several facts as also upon the consideration of various provisions of certain Acts and/or applicability thereof.
24. Coming to the authorities cited by learned counsel for the petitioner in relation to weeding out the aspect of admissible or inadmissible pieces of evidence projected by the prosecution at the time of framing of a charge and on the aspect of framing of a charge, the decision of the Apex Court in the case of P. Sirajuddin etc. v. State of Madras etc., has been cited before us for bringing to our notice the fact "the means adopted no less than the end to be achieved must be impeccable" and that "howsoever serious the crime and howsoever incriminating the circumstances may be against a person supposed to be guilty of a crime the Code of Criminal Procedure aims at securing a conviction if it can be had by the use of utmost fairness on the part of the officers investigating into the crime before the lodging of a charge-sheet." This was to substantiate the contention that the interception having not been obtained in accordance with law has to be ignored from consideration while framing of the charge.
25. Our attention was invited amongst other to the decision of the Apex Court in the case of State of Punjab v. Baldev Singh,. Their Lordships in their judgment have recorded that the judgment in Ali Mustqffa Abdul Rahman Moosa v. State of Kerala, correctly interprets and distinguishes the judgment in Pooran Mal v. The Director of Inspection (Investigation), New Delhi & Ors., and broad observations made in State of Himachal Pradesh v. Pirthi Chand and Anr., and in the case of State of Punjab v. Jasbir Singh & Ors., are not in tune with correct exposition of law, as laid down in Pooran Mal's case cited supra, and it was contended that as it was under the N.D.P.S. Act, an illicit articles seized from the person of an accused during search conducted in violation of the safeguard provided under section 50 of the Act cannot be used as admissible evidence of proof of unlawful possession of the contraband of the accused, the interception made herein being in violation of the guidelines laid down in the P.U.C.L. case cited supra and further being not in conformity with the provisions of section 14 of the M.C.O.C. Act cannot be held as admissible piece of evidence against the petitioner for framing the charge under the M.C.O.C. Act. It is, no doubt, true that the Apex Court in its decision held that the use of the evidence collected in breach of the safeguards provided under section 50 at the trial would render the trial unfair and though the Court did not express its opinion whether the provisions of section 50 were mandatory or directory, it further held that failure to inform the concerned person of his right as emanating from sub-section (1) of section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law. It is apparent even from this judgment that evidence of proof of unlawful possession of the contraband on the accused has to be assessed at the time of trial and the aspect of the admissibility thereof on account of violation of the safeguards provided in section 50 of the Act has to be judged at that juncture depending upon relevancy of that material and the facts and circumstances of that case. It is well settled that it is a bounden duty of the Court to make efforts to see that the criminal justice is salvaged despite some defects in relation to investigation, as observed by the Apex Court in one of its judgment.
26. We have already discussed in the context of this case the various aspects on which the Apex Court's decisions were brought to our notice and we feel that no more discussion in relation thereto is necessary and it would be suffice to say that judged on the principles noted in the various decisions cited supra, in our view none of these decisions are of any avail to the petitioner in the instant case for claiming our interference with the prosecution at this stage.
27. We only refer to and reject the petitioner's one more submission, lest it be said that we have not considered the same. The submission is that since no prior approval for recording the information as contemplated under section 23(1)(a) of the M.C.O.C. Act is obtained the charges under M.C.O.C. Act are liable to be quashed. Answer lies in the sanction order dated 18th November, 1999 itself as it indicates prior approval having been granted in exercise of powers conferred on the concerned authority under section 23(1)(a) of the M.C.O.C. Act. Mere use of word to investigate is of no consequence.
28. Coming to the next contention raised by learned counsel for the petitioner in relation to the framing of charge under section 13 of the Prevention of Corruption Act and the prosecution thereunder, it cannot be accepted that the Special Judge under the M.C.O.C. Act cannot take cognizance of the offences punishable under the provisions of Prevention of Corruption Act. It was contended that taking of cognizance and the prosecution for the offence punishable under the Prevention of Corruption Act are exclusively within jurisdiction of the Special Judge under the Prevention of Corruption Act in view of the explicit provisions of Sections 3 and 4 of the Prevention of Corruption Act. Section 3 of the Prevention of Corruption Act provides for an appointment of Special Judge for conducting the cases involving offences punishable under the Prevention of Corruption Act and Section 4 provides that notwithstanding anything contained in the Code of Criminal Procedure or in any other law for the time being in force. the offences specified in section 3(1) i.e. (i) any offence punishable under the Prevention of Corruption Act and (ii) any conspiracy to commit or any attempt to commit or any abetment of any of the offences punishable under the Prevention of Corruption Act, shall be tried by Special Judge only. No doubt, this provision speaks of trial for the offences punishable under the Prevention of Corruption Act only by Special Judge who is appointed as such by the Central Government in exercise of its powers under section 3 of the Prevention of Corruption Act. Section 4 begins with non obstante clause and leaves the message that whatever be the provisions in the Code of Criminal Procedure or in any other law for the time being in force, the offence under the Prevention of Corruption Act shall be tried exclusively by the Special Judge only. The jurisdiction if any conferred on any other Judges either under the provisions of the Code of Criminal Procedure or under any other law for the time being in force has been taken away conferring it exclusively on the Special Judge appointed under the Prevention of Corruption Act. Insofar as the M.C.O.C. Act is concerned, it would come in the category of "in any other law". Section 4 further speaks of those other laws which only were for the time being in force. The phrase "for the time being in force" has been construed by the Apex Court as meaning, at the moment or existing position, in the case of Jivendra Nath Kaul v. Collector/District Magistrate,. The M.C.O.C. Act was not in force at the time when the Prevention of Corruption Act came to be enacted. Apart from this M.C.O.C. Act, a State Legislation has received assent of the President. Section 25 of the M.C.O.C. Act gives overriding effect to the provisions thereof. Section 25 of the M.C.O.C. Act as incorporated in that regard, is as under :
"25. The provisions of this Act or any rule made thereunder or any order made under any such rule shall, have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force of in any instrument having the force of law."
29. Reading of this section clearly indicates that even if there is any inconsistency in between the provisions of the M.C.O.C. Act and in any other law for the time being in force or in any instrument having the force law, it would be the provisions of the M.C.O.C. Act, which they shall have effect. It was tried to be contended that there was no inconsistency or repugnancy in between the Stale and the Central Act, in any case of irreconcilable nature, inasmuch as both the Acts are distinct and separate and operate in different fields without encroachment. Both enactments can stand together, and in such a eventuality, the special provisions of the Prevention of Corruption Act must prevail.
30. Here we may note that the provision of section 7 of the M.C.O.C. Act speaks of the powers of Special Courts with respect to other offences, which is as under :
"7. (1) When trying any offence punishable under this Act, a Special Court may also try any other offence with which the accused may, under the Code, be charged at the same trial, if the offence is connected with such other offence.
(2) If, in the course of any trial of any offence under this Act, it is found that the accused person has committed any other offence under this Act or under any other law, the Special Court may convict such person of such other offence and may pass any sentence authorised by this Act or, as the case may be, such other law, for the punishment thereof."
31. It is thus clear from the provisions of section 7 of the M.C.O.C. Act that if the offence thereunder is connected with any other offence with which the accused may, under the Code, be charged at the same trial, the Special Judge under the M.C.O.C. Act is empowered to try even such other offence. There is no contention before us that the offences under the M.C.O.C. Act relating to which the charges are framed against the petitioner are not connected with the offences punishable under the M.C.O.C. Act for which the charges are framed against the Petitioner and the offence under the Prevention of Corruption Act for which the charges are framed against the petitioner cannot be said to be not connected with each other. Having regard to the provisions of sections 7 and 25 of the M.C.O.C. Act, we do not see any difficulty in reaching the conclusion that the Special Court under the M.C.O.C. Act is competent and is having jurisdiction to try the petitioner for the offence punishable under the Prevention of Corruption Act with which he charged along with the offence punishable under the Prevention of Corruption Act with which he charged along with the offence punishable under the M.C.O.C. Act framed against the petitioner particularly when we noticed that the M.C.O.C. Act firstly is an enactment which was not in force at the time of Prevention of Corruption Act was enacted and further more particularly it has received assent of the President. The contention that there is no inconsistency or repugnancy between the M.C.O.C. Act and the Prevention of Corruption Act inasmuch as these two Acts can stand together cannot be accepted in the face of further submission of the petitioner that in view of the explicit language of Sections 3 and 4 of the Prevention of Corruption Act, the offences under the Prevention of Corruption Act have to be tried exclusively by a Special Judge appointed under that Act. The Apex Court, in the case of T.K.V.T. Sundara Swamigal Medical Educational and Charitable Trust v. State of Tamil Nadu, has held that the test of two legislations containing contradictory provisions cannot be said to be the only criterion of repugnance. It then held that "repugnancy may arise between two enactments even though the obedience to each of them is possible without disobeying the other if a competent legislature with a superior efficacy expressly or impliedly evinces by its legislation an intention to cover the whole field." If the submission of learned counsel for the petitioner in relation to the scope of sections 3 and 4 of the Prevention of Corruption Act is taken into consideration, in the backdrop of this decision of the Apex Court, his contention about there being no repugnancy or inconsistency cannot be accepted. As already indicated, the M.C.O.C. Act has already received assent from the President, and therefore, the M.C.O.C. Act shall prevail in the State having regard to the provisions of Article 254(2) of the Constitution of India and the Special Court under the M.C.O.C. Act would be having jurisdiction to try the cases for the offences punishable under the Prevention of Corruption Act as well at the same trial wherein the offence punishable under the M.C.O.C. Act is being tried. Contrary submissions made in this regard are not acceptable to us.
32. We may take note of the decisions cited on the above aspect by learned counsel for the petitioner. The first one is Zaverbhai Amaidas v. State of Bombay, for pointing out if the later legislation deals not with the matters which formed the subject of the earlier legislation but with other and distinct matters though of a cognate and allied character, then Article 254(2) will have no application. Another case cited before us is in the case of Ch. Tika Ramji & Ors. v. State of Uttar Pradesh and Ors., for the same proposition that a repugnancy has to be considered when the law made by Parliament and the law made by the State Legislature occupy the same field because, if both these pieces of legislation deal with separate and distinct matters though of a cognate and allied character, repugnancy does not arise. It would be pertinent to note that in this decision, the Apex Court noted inter alia one test of inconsistency as conclusive namely: "If, however, a competent legislature expressly or implicitly evinces its intention to cover the whole field, that is a conclusive test of inconsistency where another Legislature assumes to enter to any extent upon the same field." The decision in the case of Basti Sugar Mills Co. Ltd. v. State of U.P. & Anr., was then again referred to strengthen the proposition that "inconsistent means mutually repugnant or contradictory; contrary, the one to the other so that both cannot stand, but the acceptance or establishment of the one implies the abrogation or abandonment of the other."
33. Lastly, the decision in the case of M. Karunanidhi v. Union of India, was brought to our notice wherein the Apex Court held "that where there is no inconsistency but a statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both the statutes continue to operate in the same field."
34. We only observe that none of these judgments helps the petitioner.
35. The contention that basic ingredient of the offence punishable under section 13(1)(d)(i)(ii), i.e. the accused obtaining for himself or for any other person any valuable thing or pecuniary advantage, is being not made out by any piece of evidence so far obtained by the prosecution, and the charge framed thereunder therefore cannot stand for trial, more particularly, in the absence of this fact of obtaining valuable thing by the petitioner for himself or for any other person in the sanction order itself also cannot be accepted. It was contended that in none of the four statements including the supplementary statements of the complainant and his son, it is whispered that either of them had parted any amount and such basic ingredient of section 13(1)(d)(i)(ii) is not made out.
36. As already indicated in the charge-sheet in the instant matter filed on 12th June, 2000, the sanction for taking cognizance as required under section 19 of the Prevention of Corruption Act is granted by the Government on 8th August, 2000 and the sanction order was produced before the Special Court on 9th August, 2000. The sanction order, inter alia, clearly records that the Government of Maharashtra having fully examined the materials before it and considering all the facts and circumstances disclosed therein, is satisfied that there is a prima facie case made out against the accused person in as much as he has abused his official position as a Judge and obtained pecuniary advantages and thereby committed criminal misconduct and that it is necessary in the interest of justice that the accused person should be prosecuted in the Court of competent jurisdiction for the said offences. The schedule attached to the sanction order, inter alia, incorporates a statement that from these conversations, it became evident that Shri J. W. Singh has to recover lacs of rupees from one Shri Sardarsingh Abrol @ Dara arising out of Bhisee transaction and the petitioner has engaged services of Chhota Shakil using Liyakat Ali Shaikh as a contact man and further it is also revealed from the conversation dated 9th April, 1999 that the two associates of Chhota Shakil gang were acquitted by the accused the petitioner in Sessions Case No. 436 of 1998 i.e. Malad Police Station C. R. No. 449 of 1994. The sanction order further states that during the course of investigation, it is revealed that the petitioner has abused his official position as Judge being a public servant and obtained pecuniary advantage for himself or for his family and thereby committed offence of criminal misconduct under section 13 of the Prevention of Corruption Act, 1988.
37. In the face of these averments in the sanction order, it cannot be accepted that the offence punishable under section 13(1)(d)(i)(ii) do not find place in the sanction order nor can it be said that there was no evidence at all in that behalf on record including the statements of the complainant and his son. The Special Court has considered this aspect as Point No. 2 in its order dated 25th August, 2000 and, on going through it, we being generally in agreement with the observations of the Special Court, we do not see any reason to discuss this aspect any further. On going through the sanction order, it is difficult for us to accept the submissions made by learned counsel for the Petitioner that if suffers from the vice of non-application of mind and, therefore, cannot be treated to be a valid sanction order placing reliance on the decisions in Mohd. Iqbal Ahmed v. State of Andhra Pradesh.
38. It was then contended that under section 19 of the Prevention of Corruption Act, no Court can take cognizance of offence punishable under section 13 except with previous sanction by the Appropriate Authority. In this case, the cognizance of offence under the Prevention of Corruption Act could not be said to have taken on 8th August, 2000 or thereafter and production of the sanction order before the Special Court on 9th August, 2000 i.e. after the Special Court having already taken cognizance on 12th June, 2000 would not enable the Court to try the offence punishable under Prevention of Corruption Act. A decision of the Federal Court in the case of Basanta Chandra Ghose v. Emperor, was relied upon by learned counsel for the petitioner. The Federal Court, in its decision, having regard to the provisions of Clause. 16 of the Drugs Control Order (1943) held that "the words of clause 16 of this Order are plain and imperative, and it is essential that the provisions should be observed with complete strictness and where prosecutions have been initiated without the requisite sanction, they should be regarded as completely null and void, and if sanction is subsequently given, new proceedings should be commenced ab initio." It was contended that since the sanction was filed and produced before the Court after its taking cognizance on 12th June. 2000, the proceedings should have been commenced ab initio, as laid down in this decision cited supra, and since it was clarified by the Special Public Prosecutor before the Special Court on 9th August, 2000 that the prosecution would not file another charge-sheet, the Special Court was not competent to frame charge and to hold the trial for the offence punishable under the Prevention of Corruption Act. It may be noted that purpose behind securing sanction to prosecute the public servant is that the public servant is not subjected to any vexatious or malicious prosecution. It would further be also noted that as per section 190 of the Code of Criminal Procedure, the Court has to take cognizance of certain set of facts which constitutes offence. The charge-sheet is to be filed by the police but it is ultimately for the Court to frame the charge by finding out from the investigation papers as to what offences are made out therefrom. The evidence was already collected and the charge sheet was submitted. From the investigation papers therein, it was for the Special Court to find out as to whether material collected, inter alia, revealed commission of offence punishable under the Prevention of Corruption Act. In such set of circumstances, merely because the charge came to be filed earlier than the date of production of the sanction order before the Court, it cannot be said that the Court would not have jurisdiction to frame charge and hold the trial of the accused for the offences punishable under the Prevention of Corruption Act particularly when the sanction order was produced before framing of the charges. The Federal Court decision would not be of any avail to the petitioner in the instant case since the sanction order therein was produced before the Magistrate when already the case was fixed for evidence i.e. when the prosecution had already been set in motion and various steps were taken.
39. Last submission that the offence punishable under the Prevention of Corruption Act cannot be borne out from the N. C. Complaint dated 2nd April, 1999 and the statement dated 3rd April, 1999 of the complaint and his son read with report dated 5th April. 1999 of the Sion Police Station and at the most they may be making out the offence punishable under section 385 only and that the offence punishable under section 387 of the Indian Penal Code has been registered only with an object of attributing an offence against the petitioner under the provisions of the M.C.O.C., in our view, on going through these documents, is a futile one. Resultantly, the submission about the Court having no jurisdiction to try the case cannot be accepted so also the request for transfer of the case from the Special Court to the Metropolitan Magistrate Court. In this regard, it may suffice to refer to the statement dated 3rd April, 1999 of the complainant's son, P.W. 29, which, prima facie, indicates a threat of putting the complaint in fear, as contemplated by section 387 of the Indian Penal Code. The Special Court, therefore, cannot be said to have committed any error in framing the charge for the offence punishable under section 120-B read with section 387 of the Indian Penal Code.
40. Thus, the challenge raised by the petitioner in this petition to the orders dated 12th May, 2000 passed by Respondent No. 3 so also the order dated 18th April. 2000, 25th August, 2000 and 15th September, 2000 thus fails.
41. The request of the petitioner for enlarging him on bail resultantly cannot be considered. Needless to say that it would be open to the petitioner to have recourse to other remedies, if any, in this regard in accordance with law.
42. We also record that the Special Court at the time of appreciating the evidence ultimately will not allow itself to be swayed, either way, by any reference or observation we made herein in relation to the material collected by the prosecution to use it as evidence.
43. The petition is thus dismissed.