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39 wp.1956.05.sxw In Paragraphs 16 and 17, the Division Bench went on to observe as follows:

"16. The plain reading of the said section clearly indicates the safeguards it provides against the misuse/abuse of the provisions of the MCOC Act, 1999 by the State and, therefore, it clearly lays down in so far as the first part is concerned that no information about the commission of offence of organised crime under this Act shall be recorded by police officer without prior approval of the police officer not below the rank of Deputy Inspector General of Police and that no investigation of an offence under the provisions of this Act shall be carried out by a police officer below the rank of the Deputy Superintendent of Police which in our view regulated the registering of an offence as an organised crime under the MCOC Act, 1999 and senior information its investigation. The contention of Mr. advocate appearing for about the commission Sushil Kumar, the learned the petitioner, that the of an offence of an organised crime has to be qua all the persons who are found to be involved in commission of such an offence cannot be accepted as sub-section (1)(a) of Section 23 of the said Act does not say so. Mr. Sushil Kumar has referred to the proviso of Section (3)(a) of Section 20 of the MCOC Act of 1999 to make a point that unless the information is in respect of the persons found having committed an organised crime, there cannot be any blanket approval as even in case of all persons who have been found to be absconding or concealing themselves they cannot be apprehended, the proviso requires that the date of registering offence against such person who has absconded or is concealing himself would rather go to indicate that the information received has to be against such person which would necessarily require approval before offences under MCOC Act are registered on the basis of any information for having committed an organised crime punishable under the MCOC Act, 1999 as held in Mukhtiar Ahmed Ansari's case (cited supra). In the absence of any prior approval either in writing or oral the proceedings will stand vitiated and, therefore, in the case of Vinod Asrani when the approval was granted his name did not figure in the list of persons against whom information was received of having committed or associated with organised crime and therefore he could not have been subsequently arrested without prior approval which is admittedly not there in his case. With all humility at our command, the decision in Mukhtiar Ahmed Ansari's case (cited supra) cannot be misconstrued and read so as to mean that after an approval has been granted by the police

10. In the present case, the investigation for offence under Section 3 of the MCOC Act proceeded only after prior approval was granted on 21st October 2004 by the Competent Authority. Indeed, the investigating agency was later on changed and eventually CBI took over the investigation with effect from 9th February 2005. The fact that there was change in the investigating agency, does not mean that the new investigating agency could not have proceeded in the matter or undertaken further investigation from the same stage when it took over the case, unless fresh prior approval procedure under Section 23(1)(a) was followed. Such argument clearly overlooks that with the change of investigating team, what happens is only further investigation is taken over by the subsequently nominated 45 wp.1956.05.sxw investigating team. That does not efface the prior approval granted by the competent Authority. Even the fact that the newly appointed investigating agency re-registers the case, does not affect the prior approval granted by the Competent Authority. The re-registration of the case with the newly appointed investigating agency is with a view to continue with the further investigation of the same case and not an independent case as such. In this view of the matter, the fact that the Petitioners herein have been proceeded on the basis of pre-existing registered FIR, which does not make reference to the involvement of the Petitioners in the offence referred to in the said FIR would not take the matter any further. Inasmuch as, during the course of investigation, if material has come on record to disclose the involvement of the Petitioners herein in relation to the offence referred to in the FIR and on the basis of which charge-sheet were to be filed, it would not be necessary to first register offence against such persons whose involvement has been disclosed during the investigation. But the prosecuting agency would be competent to file charge-sheet on compliance of other formalities preceding filing of the charge-sheet in Court against such persons. In such a case, the question of obtaining of prior approval under Section 23(1)(a) of the MCOC Act against such person, would not arise and the prior approval which has already been granted on the basis of which investigation for 46 wp.1956.05.sxw offence punishable under Section 3 of the MCOC Act proceeded, would be sufficient compliance. As a matter of fact, on fair reading of prior approval dated 21st October 2004, it is not as if it has been granted only against specific accused. Such argument cannot be countenanced. In any case, in law, even if the prior approval under Section 23(1)(a) of the MCOC Act was to be granted in connection with the FIR which mentioned name of only some of the accused; but if during the course of investigation, it transpires that even other persons were engaged in the commission of the alleged offences, the prior approval so granted would be sufficient compliance and the investigating agency would be free to investigate the matter even against such persons but would be bound to take sanction of the Appropriate Authority even against the additional accused, before filing of the charge-sheet which would name those persons in addition to the named accused. Suffice it to observe that no separate approval under Section 23(1)(a) would be required for every offence subsequently investigated and found to have been committed by the same organised crime syndicate as part of its continuing unlawful activity. For, it could be clubbed and treated as one single offence of organised crime under the MCOC Act. The question as to whether that offence is in relation to offence of organised crime committed in the course of some other transaction or 47 wp.1956.05.sxw not in relation to same facts , is a matter to be considered only after filing of further police report and the sanction order.

11. Counsel for the Petitioners would, however, rely on the decision of the Apex Court in the case of State of Maharashtra & Ors. Vs. Lalit Somdatta Nagpal & Anr. reported in (2007) 4 SCC 171. In this case, however, the question primarily considered was whether the provisions of MCOC Act would have application to the cases covered by the provisions of Essential Commodities Act, 1955. In other words, the applicability of MCOC Act to the offence alleged to have been committed under the provisions of Essential Commodities Act was the matter in issue. The Apex Court on analysing the Scheme of the two Enactments, has taken the view that the offence ascribable to the provisions of the Essential Commodities Act would not attract the offence of organized crime under the MCOC Act.

19. To answer this controversy, we would first turn to Section 23 of the MCOC Act. Section 23(2) of the MCOC Act postulates that no Special Court shall take cognizance of any offence under MCOC Act without the previous sanction of the police officer not below the rank of additional Director General of Police. The expression `police officer' has not been defined in the MCOC Act of 1999. That expression has not been defined even in the Cr.P.C. Indeed, Section 2 (s) of the Cr.P.C. defines the expression "police station" and Section 2(o) defines the expression "officer in-charge of a police station". Considering the fact that the MCOC Act is a State Legislation, it would necessarily refer to the members of the Police Force in the State of Maharashtra as referred to in Mumbai Police Act, Mumbai General Clauses Act and Mumbai Police Force Establishment Act.