Bombay High Court
Dayanand B. Nayak vs Ketan K. Tirodkar And Anr. on 17 December, 2003
Equivalent citations: 2004CRILJ2177
ORDER B.H. Marlappale, J.
1. This petition filed under Article 226 of the Constitution prays for an appropriate writ, order or direction in the nature of a writ for quashing and setting aside the proceedings initiated by the first respondent and registered as Misc. Application No. 225 of 2003 before the Designated Court at Mumbai under the Maharashtra Control of Organised Crime Act, 1999 (for short MCOCA). The petitioner is presently working as Police Sub Inspector attached to the Crime Investigation Unit of crime branch, Andheri of Mumbai Police. Whereas the first respondent claims to be a journalist and associated with the petitioner in the alleged organised crime under MCOCA as has been set out in the complaint dated 6th October, 2003 addressed to Shri Shankar Kamble, Assistant Commissioner of Police, Crime Branch, Mumbai with copies to different authorities, overseas as well as within the country.
2. On submission of the said complaint dated 6th October, 2003, the first respondent (hereinafter referred to as "the complainant") approached this Court on or about 16th October, 2003 by moving Criminal Writ Petition No. 1573 of 2003 and prayed (a) to direct the Additional Commissioner of Police, Crime Branch, Mumbai to grant approval of recording of information about the commission of offence of organised crime under MCOCA; (b) to direct Asstt. Commissioner of Police to effectively investigate into the complaint dated 6th October, 2003 lodged by the petitioner as contemplated under Section 23(b) of MCOC Act and to file a report to this Court. By way of interim relief, pending the petition, he had prayed for a direction against the Commissioner of Police, Greater Mumbai to provide for police protection to him. By interim order dated 17th October, 2003, a Division Bench of this Court directed the Commissioner of Police, Mumbai to provide police protection. Affidavit reply came to filed by Shri Shankar Kamble, Asstt. Commissioner of Police, Crime Branch (referred to as ACP) on or about 18th October, 2003 and additional affidavit was filed by the same officer on 3rd November, 2003 in the said petition. In the first petition, it was stated by the affient that on 15th October, 2003 while going through the copy of the petition memo, served in advance, he came across the complaint letter dated 6th October, 2003 and on that day he initiated enquiries with respect to the contests of the same and, therefore, enquiry was in progress. Whereas in the additional affidavit the very same officer stated that the complaint letter dated 6th October, 2003 was received by him from the office of the Commissioner of Police, Mumbai on 24th October, 2003 with a direction to make enquiry into the matter and to submit the report immediately. He further stated that thereafter he had recorded the statement of 6 persons to verify the authenticity of the complaint and as wild allegations were levelled against politicians, bureaucrats and I.P.S. Police Officers, a detailed secret enquiry was carried out by him which, at the relevant time, was at crucial stage. This Court taking note of the said statement regarding enquiry being in progress and of the statement made by the learned Prosecutor that police protection as provided to the complainant would be continued, disposed off the petition by order dated 4th November, 2003.
3. It appears that on or about 12th November, 2003, the complainant approached the Designated Court at Mumbai constituted under the MCOCA and filed Misc. Application No. 255 of 2003. On 13th November, 2003, the learned Special Judge, after noticing the provisions of Section 9(1) and 23 of MCOCA held that the complaint by a citizen can be entertained by the Special Court in respect of the fact which may constituted offence punishable under the said Act along with the offences punishable under I.P.C. and other penal statutes and that being so Misc. Application was directed to be registered as Special Case No. 4 of 2003 under MCOCA. On the next day, the verification of the complainant was recorded under Section 200 of the Code of Criminal Procedure (the Code for short). The learned Judge did not think it appropriate to proceed further by invoking the power under Section 204 of the Code and by postponing the same he proceeded to record evidence of some witnesses, a list of which was provided by the complainant. One Shri Tejpal Singh was examined on oath on 20th November, 2003 and Shri Mahesh Sanappa Gowda was examined on 3rd December, 2003. However, in the meanwhile, the learned Special Judge passed an order on 20th November, 2003 and issued search warrant directing the ACP to take search of the house as well as office of the accused Nos. 1 to 3 and search was conducted subsequently, a report of which has been submitted before the Special Court by the Officer so appointed. It is at this stage that the present petitioner became aware of the complaint filed by the complainant and being aggrieved by the orders of the Special Court entertaining a private complaint, this petition came to be moved under Article 226 of the Constitution of India.
4. In the exhaustive arguments advanced before me by Shri Manohar, the learned Senior Counsel, Shri Mundergi and Shri Marwadi, the learned Counsel for the petitioner the following questions have been raised for consideration.
a) Whether a private complaint could be entertained by the Special Court constituted under MCOCA in view of the provisions of Section 9(1) therein,
b) Whether the Court could take cognisance of such complaint unless requirements of Section 23(2) of MCOCA were satisfied, and
c) Whether the Special Court committed an error apparent on the face of the record in entertaining the said private complaint.
5. Shri Janardhanan, the learned Additional Advocate General while clarifying his role to assist in placing the correct legal position before this Court has also questioned the action of the Special Court in entertaining the private complaint. He submitted that in view of the provisions of Section 9 of MCOCA, a private complaint directly moved before the Designated Court was barred and in any case while the State Govt. had taken cognisance of the complaint dated 6th October, 2003 submitted by the complainant and the enquiry was in progress through Shri Sandeep Bishnoi, DCP Zone, V, it was patently erroneous for the Designated Court to entertain the complaint in view of provisions of Section 210 of the Code.
6. Shri Solkar, the learned Counsel appearing for the complainant, has opposed the petition and submitted that the Designated Court is fully competent to entertain a private complaint under Section 9 of MCOCA and the provisions of Section 23(2) would not come in the way of Designated Court so long as the Court has not taken cognisance of the private complaint and taking cognisance would commence from the order of process under Section 204 of the Code and not earlier and in nay case permission as contemplated under Section 23(2) of MCOCA is a procedural requirement which could be complied with at any time before the trial commences on framing of charges by the Special Court. In the affidavit in reply filed by the complainant, a specific plea has been raised that the provisions of Section 23(2) are not operative in a private complaint directly filed before the Designated Court. Before I proceed further, it would also be appropriate to note some other issues raised by the petitioner. It is contended that the Special Court under MCOCA, unless specifically provided is not empowered to invoke the provisions of the Code in Chapters XIV and XV and, therefore, entire action of the Court below is vitiated on this count.
7. A number of authorities have been cited across the bar by the respective parties in support of their contentions and reference to the relevant ones would be made while deciding each issue. The preamble of MCOCA shows that it was enacted for making the special provision for prevention and control of and for coping with, criminal activity by the organised crime syndicate or gang and for matters connected therewith or incidental thereto. The statement of objects and reasons noted that the existing legal frame work i.e the penal and procedural laws and the adjudicatory system are found to be rather inadequate to curb or control the menace of organised crime and, therefore, Government decided to enact a special law with stringent and deterrent provisions including in certain circumstances power to intercept wire, electronic or oral communication to control the menace of the organised crime. The Act has come into force all over the State of Maharashtra on 24th February, 1999. The term "organised crime" as defined under Section 2(2) of the Act means any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other persons or promoting insurgency. The term "organised crime syndicate" means a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulge in activities of organised crime whereas "Special Court" means a Special Court constituted under Section 5 of MCOCA. Section 2(2) also states that the words and expressions used but not defined in MCOCA and defined in the Code shall have the meanings respectively assigned to them in the Code. Section 4 of the Act provides for punishment for possessing unaccountable wealth on behalf of member or organised crime syndicate whereas Section 5 provides for establishing "Special Courts" by the State Government with the concurrence of the Chief Justice of this Court. Sub-section (4) states that a person shall not be qualified for appointment as a Judge or an additional judge of a Special Court, unless he immediately before such appointment is a sessions judge or an additional sessions judge. Section 6 deals with the jurisdiction of the Special Court whereas Section 7 deals with the power of the Special Courts with respect to other offences. Section 8 provides for appointment of Special Prosecutor and Section 9 deals with the procedure and powers of the Special Court. Section 10 states about the trial by Special Courts to have precedence over the trial of any other case against the accused in any other Court. As per Section 12 an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to this Court. Section 17 provides for special rules of evidence and Section 18 provides for certain confessions made to police officer to be taken into consideration. Section 19 provides for protection to the witnesses in the manner set out therein and Section 20 is about the forfeiture and attachment of property of the accused. Section 21 provides for a modified application of certain provisions of the Code and it, inter alia, states that Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act with certain modifications. The provisions of Section 438 of the Code regarding anticipatory bail are not applicable to the accused person under MCOCA and there are certain restrictions while considering an application filed for regular bail. Section 23 deals with the procedure for taking cognisance and enquiry into an offence.
8. It would be desirable that the provisions of Sections 9, 21 and 23 are reproduced for ready reference.
9. Procedure and Powers of Special Court. (1) A Special Court may take cognisance of any offence without the accused being committed to it or trial, upon receiving a complaint of facts which constitute such offence or upon a police report of such facts.
(2) Where an offence triable by a Special Court is punishable with imprisonment for a term not exceeding three years or with fine or with both, the Special Court may, notwithstanding anything contained in Sub-section (1) of Section 260 or 262 of Code, try the offence in summary way in accordance with the procedure prescribed in the Code and the provisions of Sections 263 to 2651 of the Code shall, as far as may be, apply to such trial;
Provided that, where in the course of a summary trial under this sub-section, it appears to the Special Court that the nature of the case is such that it is undesirable to try in a summary way, the Special Court shall recall any witnesses who may have been examined and proceed to re-hear the case in the manner provided by the provisions of the Code for the trial of such offence and the said provisions shall apply to and in relation, to a Special Court as they apply to and in relation, to a Magistrate;
Provided further that, in case of any conviction in a summary trial under this section, it shall be lawful for a Special Court to pass a sentence of imprisonment for a term not exceeding two years.
(3) A Special Court may, with a view to obtaining the evidence of any person, supposed to have been directly or indirectly concerned in or privy to an offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relative to the offence and to every other person concerned, whether a principal or abetter, in the commission thereof, and any pardon so tendered shall, for the purposes of Section 308 of the Code, be deemed to have been tendered under Section 307 thereof.
(4) Subject to other provisions of this Act, a Special Court shall, for the purpose of trial of any offence, have all the powers of a Court of Sessions and shall try such offence as if it were a Court of Sessions, so far as may be, in accordance with the procedure prescribed in the Code for the trial before a Court of Session.
21. Modified application of certain provisions of the Code: (1) Notwithstanding anything contained in the Code or in any other law, every offence punishable under this Act, shall be deemed to be cognisable offence within the meaning of Clause (c) of Section 2 of the Code and "cognisable case" as defined in that clause shall be construed accordingly.
(2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modifications that, in Sub-section (2),--
(a) the reference to "fifteen days" and "sixty days" wherever they occur, shall be construed as references to "thirty days" and "ninety days", respectively.
(b) after the proviso, the following proviso shall be inserted, namely, :-
"Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Special Court shall extend the said period upto one hundred and eighty days, on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days."
(3) Nothing in Section 438 of the code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence punishable under this Act.
(4) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act shall, if in custody, be released on bail or on his own bond, unless; (a) the Public Prosecutor has been given an opportunity to oppose the application of release; and (b) where the Public Prosecutor oppose the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(5) Notwithstanding anything contained in the Code, the accused shall not be granted bail if it is noticed by the Court that he was on bail in an offence under this Act, or under any other Act, on the date of the offence in question.
(6) The limitations on granting of bail specified in Sub-section (4) area in addition to the limitations under the Code or any other law for the time being in force on the granting of bail.
(7) The police officer seeking the custody of any person for pre-indictment or pre-trial interrogation from the judicial custody shall file; a written statement explaining the reason for seeking such custody and also for the delay, if any, in seeking the police custody.
23. Cognizance of, and investigation into, an offence: (1) Notwithstanding any contained in the Code:
(a) no information about the commission of an offence of organised crime under this Act, shall be recorded by a police officer without the prior approval of the police officer not below the rank of the Deputy Inspector General of Police;
(b) 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.
(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. A Special Court may take cognizance of
9. Sub-section (1) of Section 9 states that the Special Court may take cognisance of any offence without the accused being committed to it or trial, upon receiving a complaint of facts which constitute such offence or upon a police report of such facts. This provision is in line with the provisions of Section 190 of the Code in Chapter XIV which is titled as "conditions requisite for initiation of proceedings". The words "when the accused being committed to it for trial" have been obviously added in Section 9(1) of the Act to get over the bar of Section 193 of the Code keeping in mind the fact that under Section 5 of MCOCA the special court is Sessions court or the Additional Sessions Court. I am supported in this view by the decision and more particularly para 24, in the case of Gangula Ashok v. State of A.P. .
Sub-section (4) of Section 9 states that subject to other provisions of the Act, a Special Court shall, for the purpose of trial of any offence, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session, so far as may be, in accordance with the procedure prescribed in the Code for the trial before a Court of Session. This provision of Sub-section (4) of Section 9 is a complete reply to the arguments advanced by the petitioner regarding the non applicability of the procedure provided under the Code for entertaining a private complaint by the Special Court. The scheme of Section 9 of MCOCA is on the lines of the scheme of Section 14 of the TADA Act, 1977.
It is thus clear that the Special Court has the power to entertain a private complaint under Section 9(1) directly and in initiating proceedings with the same it is required to follow the procedure as set out under the Code and to be followed by the Court of Sessions.
10. Section 200 of the Code appears under Chapter XV titled as "Complaint to a Magistrate" and if a complaint under Section 190 is filed before the Magistrate, the options available to him are set out in Section 200 to deal with such a complaint. Section 203 of the Code states that if after considering the statement on oath of the complainant and the witnesses and the investigation report, if the Magistrate is of the opinion that there is no sufficient ground for proceeding he shall dismiss the complaint by recording reasons. Chapter XVI is titled as "Commencement of proceedings before Magistrate". The scheme of the Code as amended in 1973 and 1978 indicates that Chapter XIV deals with the conditions requisite for initiation of the proceedings, Chapter XV deals with the complaint to the Magistrate and the procedure to be followed by the Magistrate and the commencement of proceedings on such complaint moved before the Magistrate is under Chapter XVI.
11. Let us now take stock of the enunciations which are relevant for deciding the issues as have been set out by the respective parties. In the case of Gopaldas Sindhi and Ors. v. State of Assam and Anr. (A.I.R. 1961 S.C. 986), while interpreting the provisions of Section 190 and more particularly the meaning of "taking cognisance" it has been stated by Three Judges Bench:
"We cannot read the provisions of Section 190 to mean that once the complaint is filed the Magistrate is bound to take cognisance if facts stated in the complaint disclose the commission of any offence. We are unable to construe the word "may" in Section 190 to mean "must". The reason is obvious. A complaint disclosing cognisable offence may well justify a Magistrate in sending the complaint under Section 156(3) to the police for investigation. There is no reason why the time of the Magistrate should be wasted. Primarily the duty to investigate in cases involving cognizable offences is with the police. On the other hand, there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizable offence. If he does so then he would have to proceed in the manner provided by Chapter XVI of the Code."
12. In the case of Chandra Deo Singh v. Prakash Chandra Bose alias Chabi Bose and Anr.; , a four Judge Bench, inter alia, stated; (a) taking the first ground, it seems to us clear from the entire scheme of Chapter XVI of the Code that an accused person does not come into the picture at all till process is issued. This does not mean that he is precluded from being present when an enquiry is held by a Magistrate. He may remain present either in person or through a counsel or agent with a view to be informed of what is going on. But since the very question for consideration being whether he should be called upon to face an accusation, he has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so. It would follow from this, therefore, that it would not be open to the Magistrate to put any question to a witness at the instance of the person named as accused but against whom process has not been issued nor he can examine any witnesses at the instance of such a person. Of course, the Magistrate himself is free to put such questions to the witnesses produced before him by the complainant as he may think proper in the interest of justice; (b) No doubt, one of the objects behind the provisions of Section 202 of the Code is to enable the Magistrate to scrutinise carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint. But there is also another object behind this provision and it is to find out what material there is to support the allegations made in the complaint. It is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interest of an absent accused person but also with a view to bring to book a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the basis of the material placed before him by the complainant. Whatever defence the accused may have can only be enquired into at the trial. An enquiry under Section 202 can in no sense be characterised as a trial for the simple reason that in law there can be but one trial for an offence. Permitting an accused person to intervene during the enquiry would frustrate its very object and that is why the legislature has made no specific provision permitting an accused person to take part in an enquiry; (c) For determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and nor whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined; only at the trial and not at the stage of enquiry..." It has been held that object of provisions of Section 202 is to enable the Magistrate to form an opinion as to whether the process should be issued or not and to remove from mind nay hesitation that he may have felt upon the mere perusal of the complaint and the consideration of the complainant's evidence on oath.
13. In the case of A.R. Antulay v. Ramdas Srinivas Nayak and Anr. the Constitution Bench while interpreting the provisions of the Prevention of Corruption Act, 1947, as well as implications of Section 8(1) as introduced by the Criminal Law Amendment Act, 1952 once again clarified the procedural law to be followed by the Special Court. Section 8(1) as introduced by 1952 Act reads thus:
"A special Judge may take cognizance of offences without the accused being committed to him for trial, and in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1898, for trial of warrant cases by Magistrate."
This scheme of the above section is on the lines of the scheme of Section 9(1) and 9(4) of MCOCA. The following observations of the constitution Bench in A.R. Antulay's case while dealing with the powers of a special Court under the Prevention of Corruption Act, need to be reproduced.
a) In fact, in order to give full effect to Section 18(1), the only thing to do is to read special Judge in Section 238 to wherever the expression "Magistrate" occurs. This is what is called legislation by incorporation. Similarly, where the question of taking cognizance arises, it is futile to go in search of the fact whether for purposes of Section 190 which conferred power on the Magistrate to take cognizance of the offence, special Judge is a Magistrate. What is to be done is that one has to read the expression "special Judge" in place of Magistrate, and the whole thing becomes crystal clear. The Legislature wherever it found the grey area clarified it by making specific provision such as the one in Sub-section (2) of Section 8 and to leave no one in doubt further provided in Sub-section (3) that all the provisions of the Criminal P.C. shall so far as they are not inconsistent with the Act apply to the proceedings before a Special Judge.;
(b) The net outcome of this position is that a new court of original jurisdiction was set up and whenever a question arose as to what are its powers in respect of specific questions brought before it as a Court of original criminal jurisdiction, it had to refer to the Criminal P.C. undauntedly by any designation claptrap. When taking cognizance, a Court of special Judge enjoyed the powers under Section 190. When trying cases, it is obligatory to follow the procedure for trial of warrant cases by a Magistrate though as and by way of status it was equated with a Court of Sessions.;
(c) Shorn of all embellishment, the Court of a special Judge is a Court of original criminal jurisdiction. As a Court of original criminal jurisdiction in order to make it functionally oriented some powers were conferred by the statute setting up the Court. Except those specifically conferred and specifically denied, it has to function as a Court of original criminal jurisdiction not being hide-bound by the terminological status description of Magistrate or a Court of Session. Under the Code it will enjoy all powers which a Court of original criminal jurisdiction enjoys save and except the ones specifically denied.
(d) It may be that after examining the complainant and his witnesses, the Court in order to doubly assure itself may postpone the issue of process an call upon the complainant to keep his witnesses present. The other option open to the Court is to direct investigation to be made by a police officer. And if the offence is one covered by the 1947 Act, the investigation, if directed, shall be according to the provisions contained in Section 5-A. But it must be made distinctly clear that it is neither obligatory to hold the inquiry before issuing process or to direct the investigation of the offence by police. The matter is in the judicial discretion of the Court and is judicially reviewable depending upon the material disclosed by the complainant in his statement under oath under Section 200, called in the parlance of Criminal Courts verification of the complaint and evidence of witnesses if any.
e) Primarily, examination of witnesses even at a preprocess stage by special Judge is not on the footing that the case is exclusively triable by a Court of Sessions as contemplated by Section 202(2) proviso. There is no commitment and, therefor,e Section 202(2) proviso is not attracted. Similarly, till the process is issued, the accused does not come into the picture. He may physically attend but is not entitled to take part in the proceedings."
14. Having regard to the scheme of Section (1) and (4) of MCOCA and Section 190 of the Code as well as the well settled legal position as referred to hereinabove, it is clear that the Special Court constituted under the MCOCA has the power to entertain a private complaint.
15. Now coming to the pre-condition of a sanction by the Competent Officer within the meaning of Section 23(2) of MCOCA, Shri Marwadi, the learned Counsel for the petitioner relied upon the decision in the case of Rambhai Nathabhai Gadhvi and Ors. v. State of Gujarat, and more particularly the following general observations in para 8 therein.
"Taking cognizance is the act which the Designated Court has to perform and granting sanction is an act which the sanctioning authority has to perform. Latter is a condition precedent for the former. Sanction contemplated in the sub-section is the permission to prosecute a particular person for the offence or offences under TADA. We must bear in mind that sanction is not granted to the Designated Court to take cognizance of the offence, but it is granted to the prosecuting agency to approach the Court concerned for enabling it to take cognisance of the offence and to proceed to trial against the persons arraigned in the report. Thus a valid sanction is sine qua non for enabling the prosecuting agency to approach the court in order to enable the court to take cognizance of the offence under TADA as disclosed in the report. The corollary is that, if there was no valid sanction the Designated Court gets no jurisdiction to try a case against any person mentioned in the report as the court is forbidden from taking cognizance of the offence without such sanction. If the Designated Court has taken cognizance of the offence without a valid sanction,m such action is without jurisdiction and any proceedings adopted thereunder will also be without jurisdiction."
It appears that the learned counsel for the complainant in support of his contention that prior sanction as set out in Section 23(2) of the Act is not applicable to a private complaint entertained by the special Court is relying upon the observations "we must bear in mind that the sanction is not granted to the Designated Court to take cognizance of the offence, it is granted to the prosecuting agency to approach the Court concerned for enabling it to take cognizance of the offence." in support of his contentions that the permission envisaged under Section 23(2) of MCOCA is not applicable to a private complaint directly entertained. Section 20-A(2) of the TADA reads thus:
"No Court shall take cognizance of any offence under this Act without the previous sanction of the Inspector General of Police, or as the case may be, the Commissioner of Police."
This provision is in paramateria with the provisions of Section 23(2) of the MCOCA.
16. In the case of Jaysingh Wadhu Singh v. State of Maharashtra and Ors. (2001(5) Bom.C.R.470), a similar plea was raised before this Court by referring to the provisions of Section 19 of the Prevention of Corruption Act, 1988. It was contended that the cognizance of offence under the Prevention of Corruption Act could not be said to have been taken on 8th August, 2000 or thereafter more so when the sanction was placed before the special Court on 9th August, 2000 while cognizance was taken on 12th June, 2000. It was urged that the orders were vitiated and cognizance could not have been taken by the court unless the condition precedent of sanction as set out in Section 19 of the Prevention of Corruption Act was complied with. The submissions were turned down to by the Division Bench (G.D. Patil and R.M. Lodha JJ.) by referring to the decision of Basanta Chandra Ghose v. Emperor . Admittedly the charge sheet was filed on 12th June, 2000. Sanction as required under Section 19 of the Prevention of Corruption Act was granted by Govt. on 8th August, 2000 and the said order was produced before the Special Court on 9th August, 2000. Thus, the sanction order was passed after the charge sheet was filed, and the Court held that there was no infirmity and the proceedings so commenced could not be declared void abinitio. Following observations need to be reproduced.
"It may be noted that the purpose behind securing the sanction to prosecute the public servant is that public servant is not subjected to any vexatious or malicious prosecution. It would further also be noted that as per Section 190 of the Code of Criminal Procedure, the court has to take cognizance of certain set of facts which constitute offence. The charge sheet is to be filed by police but is ultimately for the court to frame the charge by finding out from the investigation papers as to what offences are made out therefrom. Evidence was already collected and chargesheet 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 chargesheet came to be filed; earlier than the date of production of sanction order before the court, it cannot be said that the court would not have jurisdiction to frame the charge and held the trial of the case for the offence punishable under the Prevention of Corruption Act particularly when the sanction order was produced before framing of the charges."
Section 19 of the Prevention of Corruption Act is on the same lines as Section 23(2) of MCOCA. It reads thus:
"No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant except with the previous sanction,-
(a) in the case of a persons who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government.
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Govt. of that Government.
(c) in the case of any other persons, of the authority competent to remove him from his office.
17. In a private complaint entertained by the special Court under Section 9(1) of the MCOCA, the steps taken under Section 200 of the Code are procedural requirements and if the learned Special Judge proceeds to verify the complaint and records the statement of witnesses on oath it cannot be termed as an action of taking cognizance. Under Section 202 of the Code the learned Special Judge has a choice of postponing the issuance of process and if after considering the statement on oath of the complainant as well as the witnesses as recorded under Section 202 of the Code, he is of the opinion that there is no sufficient ground for proceeding further he shall dismiss the complaint by recording reasons. Section 204 of the Code deals with the issuance of process and once the order of issuance of process is passed against the accused, it shall be deemed that the court has taken cognizance of such a private complaint. After the accused appears before the Special Court in response to an order of process, the special court is clothed with the power to discharge such an accused under Section 227 and the stage of framing of charge under Section 228 of the Code would not come. In the instant case as is clear from the orders passed by the Court below the issuance of process has been postponed, though verification of the complainant as well as statement of two witnesses on oath have been recorded. Therefore, it cannot be held that the special Court has taken cognizance of the private complaint though he has directed the same to be registered as a case under MCOCA.
18. Before the special Court proceeds to frame charges on the basis of material so available on record, it is necessary that the provisions of Section 23(2) of the MCOCA are complied with and without such a compliance trial conducted. Compliance of the requirement under Section 23(2), though condition precedent to proceed further from the stage of framing of charge, it could be complied with, by passing an order by the appropriate authority as per steps to be initiated by the special court and, therefore, as at present, non compliance of the same provision would not come in the way of entertaining the complaint as well as issuance of process under Section 204 if the complaint is not dismissed under Section 203 of the Code. The direction to register the complaint under the MCOCA cannot be faulted with when it is clear that the special court is empowered to proceed under Chapters XV and XVI of the Code and more particularly Section 200, 202, 203 and 204. The second ground of challenge about klthe maintainability of the complaint also thus fails.
19. Coming to the third legal objection that has come from the learned Additional Advocate General relying upon the provisions of Section 210 of the Code, it is required to be noted that the complaint dated 6th October, 2003 forwarded by the complainant to the ACP was, though under investigation purportedly, not registered within the meaning of Section 154 of the Code and it has not been done so till this date. The prayers made in the writ petition No. 1573 of 2003 as well as the order passed thereon were not before the court below when the complaint was entertained. Even in the affidavit filed before this Court in Writ Petition No. 1573 of 2003 it was not disclosed that the complaint dated 6th October, 2003 has been directed to be investigated by Shri Sandeep Vishnoi, Deputy Commissioner of Police, Zone V. It appears that the special Court got the knowledge of the said enquiry for the first time through the communication dated 1st December, 2003 addressed by Dr. Satypal Singh, Joint Commissioner of Police (Crime). It was disclosed that the enquiry into the allegations of complainant was entrusted to Shri Sandeep Vishnoi, the then D.C.P.(Preventive) and presently D.C.P.Zone V and the said enquiry was nearing completion. It is well settled by a catena of decisions that even when a complaint has been under investigation by the Government, the competent court is not precluded from exercising powers under Section 190(1) of the Code in entertaining a private complaint which is one of the three modes of receiving such complaints as stated therein. The orders passed by the Special Court to register the complaint under MCOCA and also further action and recording evidence is not vitiated even if the court has subsequently come to know that the complaint dated 6th October, 2002 is the subject matter of investigation undertaken by the D.C.P.Zone V. It would, nevertheless, be advisable for the special Court to await this report. More so, it has been clearly stated that the enquiry is likely to be completed within a few days, before proceeding to pass orders under Chapter XVI of the Code In fact, this investigation report will be the additional material for the special Court to form an opinion either to dismiss the complaint or to proceed to issue order of process. So far as the A.C.P.is concerned, he has submitted his report dated 9th December, 2003 before the special Court and it mainly pertains to the implementation of search warrant.
20. If the special Court forms an opinion to take cognizance of the subject complaint under Section 204 of Code, it will be necessary that simultaneous steps for sanction under Section 23(2) of MCOCA are also initiated. So that the appropriate authority has sufficient time to apply its mind and pass the order and such sanction must be received before the court below proceeds to start trial by framing charges. It was contended that such a complaint may open the floodgates for filing frivolous and baseless complaints before the special court. Entertaining the complaint by the special court is not a matter of routine and unless the court is satisfied on the basis of averments made in the complaint regarding organised crimes or syndicate of such persons, it would not certainly entertain the complaint. The complainant, in the instant case, cannot be termed as a whistle blower as such and he is an accomplice as per his own admissions. Though he has prayed for pardon, he is fully aware, as submitted by his learned Counsel, that he may face similar consequences as the other accused are likely to in the trial before the special court on his complaint as and when such trial commences. The special court, from the orders passed by it on different dates, appears to have satisfied itself that the material set out in the complaint prima facie made out a case for registration under MCOCA and, therefore, it has proceeded to investigate into the same. No fault could be found with such a course. Doors of enquiry, in such a case, ought not be shut, in larger interests in a democratic society governed by the rule of law.
21. Shri Marwadi, the learned Counsel appearing for the petitioner, also raised a serious grievance against the order of search warrant passed by the court below. He invited my attention to the provisions of Section 93 of the Code and submitted that in the absence of any summons or order already having been issued against the petitioner, it was impermissible to pass the order of search. The learned Judge, therefore, exceeded his power in issuing the search warrant, urged the learned Counsel. The language of Section 93 the Code explicitly envisages even the future orders or summons and it is not necessary that the summons or orders ought to have been passed prior to issuance of search warrant. Even otherwise once it is held that the private complaint was entertained before the special Court the substantial prayer made in the petition will be dealt with and during the stage of trial of the complaint. Under Section 20(2) of MCOCA, the special court has powers to pass an order an order that all or any properties, movable or immovable or both, belonging to the accused shall be attached and where such trial ends in conviction, the properties so attached shall stand forfeited to the State Govt. free from all encumbrances. The report submitted by the ACP regarding the compliance of search report is already on record and it is for the learned special Judge to consider the same.
22. It is seen from the record that the complainant has submitted a long list of witnesses and in addition private application/letters seem to have been received by the special court. After the complaint has been verified the statement of two witnesses have been recorded on oath and Shri Sandeep Vishnoi submits his investigation report, it may be necessary for the learned Special Judge to limit the number of witnesses for recording statement on oath so as to examine whether a prima facie case has been made out under MCOCA so as to proceed further for passing the order for issuance of process. The court below would certainly exercise its judicial discretion in screening the list of witnesses even when the trial, if any, commences and the record also reveals that the learned Special Judge is aware of the limitations governing his authority under MCOCA and he would take all steps to ensure that the trial, if commences, is taken to its logical conclusion within a reasonable time. If the learned special Judge finally comes to the conclusion to pass on order under Section 204 of the Code, he would apply his judicious mind and exercise the judicial discretion in dealing with the further legal procedure so as to ensure that the same does not open floodgates for abusing the process of law.
23. It is also noticed that accused Nos. 2 and 3 have already appeared before the special court by filing application on the basis of some newspaper report. Some orders have been passed on the said application. The Special court shall deal with the same as per law. If the special court decides to issue an order of process, it is bound to take further steps as contemplated under MCOCA well as thed procedural law i.e. the Code against the accused. The learned Counsel for the complainant has raised a preliminary issue regarding the maintainability of this petition on the ground that unless the process was issued against the present petitioner, there was no reason for him to approach this Court by invoking powers under Article 226 of the Constitution. It is also submitted that the petition for queshing of the proceedings of a case registered under the special penal statute cannot be entertained unless an order under Section 204 of the Code was passed. As all the legal issued raised by the petitioner have been decided at the admission stage itself, it would not be necessary to deal with the objection raised for the maintainability of this petition. None the less, there is reason to believe that the petitioner is an aggrieved persons in as much as his house was searched pursuant to the order passed by the court below by the ACP.
24. I have also seen from the record that the complainant has submitted an application for transfer of enquiry to be conducted to some other police officer. Once the special court has chosen to verify the complaint and to record the statement on oath of two witnesses it is clear that the court has chosen one alternative and, therefore, there is no question of entrusting any further investigation to other police officer as is clear from Section 202(1) of the Code. The application so filed is, therefore, not required to be considered by the special Court. However, the special Court will await the report of Shri Sandeep Vishnoi and this Court has been assured that the said report shall be submitted at the earliest possible.
25. For the reasons set out hereinabove the challenge to the registration of M.C.O.C.Special Case No. 4 of 2003 under the MCOCA by the Special Court at Mumbai fails and the bar of Section 23(2) of the MCOC Act as well as Section 210 does not in any way come in the way of such registration. The petition is, therefore, summarily rejected.
26. Shri Marwadi, the learned Counsel for the petitioner, at this stage, submitted an oral application for stay to this order for a period of four weeks. The application is hereby rejected. It is directed that the petitioner being a Govt. servant, shall surrender his passport, if any, to the Police Commissioner, Mumbai forthwith.
27. Record and proceedings be returned forthwith.
28. Certified copy on application be supplied to the parties on priority.