Bombay High Court
Altaf Ismail Sheikh vs The State Of Maharashtra And Ors. ... on 5 April, 2005
Equivalent citations: 2005CRILJ3584
Author: R.M.S. Khandeparkar
Bench: R.M.S. Khandeparkar, P.V. Kakade
JUDGMENT R.M.S. Khandeparkar, J.
1. Since common questions of law and facts arise in all these petitions, they were heard together and are being disposed of by this common judgment.
2. In all the petitions, rule, and by consent, the rule is made returnable forthwith. Perused the records. Heard at length the learned Advocates for all the petitioners as well as the learned APP.
3. In all these petitions, the approval for recording of the commission of the offence as well as the FIR No.6 of 2005 recorded on 7th February, 2005 under provisions of Sections 3 and 7 of the Maharashtra Control of Organised Crime Act, 1999, hereinafter called as "the MCOC Act", are sought to be challenged on various grounds including the ground that the activities which are disclosed as the offence of organized crime under the MCOC Act in the said FIR refer to the period prior to 24th February, 1999, the day on which the MCOC Act came into force and that therefore, considering the provisions of Article 20(1) of the Constitution of India, the said approval for recording the information about the commission of offence under the MCOC Act as well as the FIR itself need to be quashed.
4. There cannot be any dispute on the point that the MCOC Act came into force with effect from 24th February, 1999. It is well settled law that all convictions and subjections to penalty after the enforcement of Constitution of India are prohibited in respect of the acts done prior to enforcement of a statute under which such acts are declared to be the criminal offences. The Article 20(1) of the Constitution of India is very clear in that regard and reads that "no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence."
5. The Apex Court in G.P. Nayyar v. State (Delhi Administration), reported in AIR 1979 SC 602 had held that Article 20(1) deals with ex post facto laws though that expression has not been used in the Article and though a sovereign legislature has power to legislate retrospectively, creation of an offence for an act which at the time of its commission was not an offence or imposition of a penalty greater than that which was under the law provided violates Article 20(1). The Apex Court also clarified in Rao Shiv Bahadur Singh and Anr. v. The State of Vindhya Pradesh, reported in AIR 1953 SC 394 that the expression "law in force" as used in Article 20 does not relate to a law "deemed" to be in force and thus brought into force, but to the law factually in operation at the time or what may be called the then existing law, otherwise, the whole purpose of Article 20 would be completely defeated in its application even to 'ex post facto' laws passed after the Constitution. It was held that "it cannot, therefore, be doubted that the phrase "law in force" as used in Art. 20 must be understood in its natural sense as being the law in fact in existence and in operation at the time of the commission of the offence as distinct from the law "deemed" to have become operative by virtue of the power of legislature to pass retrospective laws." It was also clarified that if a party is able to substantiate its contention that the acts charged as offences in a matter are being described as the offences only by virtue of the statute which has come into force subsequent to the commission thereof, then the party would be entitled to the benefit of Article 20 of the Constitution.
6. The law on the above point was reiterated by the Apex Court in West Ramnad Electric Distribution Co. Ltd. v. The State of Madras and Anr., reported in AIR 1962 SC 1753 holding that even if a criminal law is enacted by the legislature retrospectively, its retrospective operation will be controlled by Article 20(1) and further ruled that "by using the expression "law in force" in both the parts of Art. 20(1), the Constitution has clearly indicated that even if a criminal law was enacted by any legislature retrospectively, its retrospective operation would be controlled by Art. 20(1). A law in force at the time postulates actual factual existence of the law at the relevant time and that excludes the retrospective application of any subsequent law."
7. In Tarun Bora alias Alok Hazarika v. State of Assam, reported in 2002 AIR SCW 3417, the Apex Court, while reiterating its earlier decision in Kalpnath Rai v. State (through CBI), reported in 1997 AIR SCW 4166, and dealing with a matter under Terrorist and Disruptive Activities (Prevention) Act, 1987, hereinafter called as TADA Act, wherein the alleged offence had taken place on 18th August, 1991 whereas Section 3(5) was inserted in TADA Act by an Act of 1993 which came into force on 23rd May, 1993, i.e. subsequent to the date of incident which was alleged as the offence, held that the conviction of the accused under Section 3(5) of the TADA Act was not sustainable in view of the provisions of Article 20(1) of the Constitution of India. Under TADA Act the offence was described as "terrorist act" by "a terrorist syndicate or gang" while it is "organised crime" by "the organised crime syndicate" under the MCOC Act. The Apex Court in Kalpanath Rai's Case (supra) had found that the charges framed against the accused persons therein did not disclose that any terrorist act was committed by the gang subsequent to 23rd May, 1993, nor had any evidence, whatsoever, been adduced to show that the terrorists gang, of which those accused were alleged to be the members, had committed any terrorist act after the said date.
8. The law on the point as to whether a person can be subjected to criminal proceedings under a particular statute which defines the acts committed by such person to be offences punishable thereunder would therefore depend upon the fact as to whether the said law has been in force or not at the time when the acts complained of are committed by the concerned person. In a case where a party approaches the Court with a grievance that he is made to subject to criminal proceedings by initiating investigation by registering the FIR in relation to the commission of offence under a particular statute with reference to the acts done by the said person even prior to the enforcement of the statute in question, certainly it would be then necessary for the Court to look into the matter and if the grievance is found to be of substance, then to pass an appropriate order as the facts and circumstances may demand. Undoubtedly, in that regard under Article 226 of the Constitution of India does not fall short of power to this Court. On the contrary, as the grievance relates to the violation of the constitutional mandate comprised under Chapter III of the Constitution, it would not only be appropriate and necessary but would be rather enjoined to exercise those powers in such cases.
9. The issue as regards the parameters of interference by the writ Court at the stage of investigation pursuant to the recording of the FIR had been subject matter of catena of decisions. In State of Maharashtra v. Abdul Hamid Haji Mohammed, reported in (1994) 2 SCC 664 while examining a question regarding justification for the exercise of writ jurisdiction under Article 226 of the Constitution of India for quashing the prosecution in an offence punishable under the TADA Act, it was held that if the acts complained of ex facie cannot constitute an offence punishable under TADA Act, then the High Court would be justified in invoking the power under Article 226 of the Constitution on the ground that the detention of the accused is not under the provisions of TADA Act. Of course, the Apex Court has further hastened to add that the same can happen only in extreme cases which would be rare and the power of the High Court is not exercisable in cases where it may be debatable whether the direct accusation made in conjunction with the attendant circumstances, if proved to be true, is likely to result in conviction for an offence under TADA Act, in which cases there would be no justification for the High Court to exercise its jurisdiction under Article 226 for examining the merits of the controversy, much less for quashing the prosecution for the offence punishable under TADA Act.
10. The Apex Court in Kartar Singh v. State of Punjab, reported in (1994)3 SCC 569 had held that "though the High Courts have very wide powers under Article 226, the very vastness of the powers imposes on it, the responsibility to use them with circumspection and in accordance with the judicial consideration and well established principles." After taking into consideration the legislative history and the object of TADA Act as well as the provisions regarding overriding effect of TADA Act comprised under Section 25 thereof, it was observed by the Apex Court that if any party is aggrieved by the bail order, the only remedy under the Act is to approach the Supreme Court by way of an appeal. If the High Courts entertain bail applications invoking their extraordinary jurisdiction under Article 226 and pass orders, then the very scheme and object and the Act and the intendment of the Parliament would be completely defeated and frustrated. However, while making the said observations in relation to the bail orders passed under TADA Act and which could be subjected to the appeal to the Apex Court, it was also held that "it cannot be said that the High Courts have no jurisdiction. Therefore, we totally agree with the view taken by this Court in Abdul Hamid Haji Mohammed that if the High Court is inclined to entertain any application under Article 226, that power should be exercised most sparingly and only in rare and appropriate cases in extreme circumstances. What those rare cases are and what would be the circumstances that would justify the entertaining of applications under Article 226 cannot be put in strait-jacket."
11. In State of Himachal Pradesh v. Shri Prithvi Chand and Anr., reported in AIR 1996 SC 977, the Apex Court while observing that it is well settled law that the exercise of inherent power of the High Court is an exceptional one and great care should be taken by the High Court before embarking to scrutinise the FIR or the charge-sheet or the complaint, and while considering whether the case is rarest of rare cases or merely to scuttle the prosecution in its inception, it was held that "it first has to get into the grip of the matter whether the allegations constitute the offence. It must be remembered that FIR is only an initiation to move the machinery and to investigate into the cognizable offence. After the investigation is conducted 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 cognisable offence is made out no. further act could be done except to quash the charge-sheet."
12. Bearing in mind the law, as settled by the above decisions of the Apex Court and reverting to the contentions sought to be raised in the matter, undoubtedly, the grievance of the petitioners is that they are being sought to be subjected to criminal proceedings under the MCOC Act on the basis of the C.R.No.6 of 2005 in relation to the acts which are stated to have been committed pertaining to the 1998 MPSC examination and neither the approval for recording of the offence under the MCOC Act nor the FIR nor the materials placed before the Court disclose any act constituting the offence of organised crime under the MCOC Act having been committed on or after 24th February, 1999 and that FIR ex facie refers to the malpractices in 1998 Examination and therefore, in the facts and circumstances of the case, there could be neither investigation nor prosecution nor conviction of the petitioners in relation to the alleged offences under the MCOC Act with reference to the acts alleged to have been committed, even though and even assuming that those acts might have been the offences under some other statutes. The petitioners, therefore, contend that they cannot be subjected to investigation under the MCOC Act for the alleged activities.
13. The FIR No.6 of 2005 has been registered under the provisions of MCOC Act as well as various other provisions of Indian Penal Code read with those of Prevention of Corruption Act, 1988. Though the period of offences disclosed in the format of FIR is from 1993 to 29th June, 2002, the Clause 12 of the said FIR, which summarises the accusation against the persons named as the accused in the FIR, reads thus:-
"Accused Nos.1 to 8 named in form 1-B were found to be members of an organised crime syndicate and continuing their unlawful activities by using unlawful means with the object of gaining pecuniary benefit or gaining undue economic or other advantage for themselves or any other persons for the last preceding 10 years and further committed malpractices in PSI Departmental Ltd. 1998 Examination conducted by the MPSC."
14. The detail complaint of ACP Sudhakar Pujari which is recorded and attached to FIR discloses that pursuant to the complaint by Smt. Seema Dhamdhere, Secretary of MPSC, on 20th June, 2002, and registered as C.R.No.33 of 2002, investigations were carried out and in the course of investigation, a computer hard-disk was discovered from the accused Farook Kadage. From the examination of the said hard-disk, it was revealed that the same not only contained the data for 1999 MPSC examination in relation to which C.R.No.33 of 2002 was filed but it contained various other data pertaining to 9 other examinations, namely, PSI Dept. Ltd. Examination 1998, PSI/ASST/STI Pre & Main Exam 1999, State Service (Pre) Exam-2000, Dy. Municipal Commissioner Scrutiny Test-1997, Clerk Typist Examination-1997, Asst. Motor Vehicle Insp. Exam 1998, State Service Examination-1998, State Service Examination-1997, and Sales Tax Inspector Examination-1997. The contents of the hard-disk also disclosed in detail the malpractices performed in the Police Sub-Inspector Ltd. Departmental Examination 1998 held on 13th September, 1998 and the 'Answer Key' of PSI Departmental Examination 1998. The final result of the said Examination was declared on 22nd September, 1999. The complaint further states that MPSC vide its report dated 20th February, 2004, after its internal enquiry informed about the malpractice conducted in the Police Sub-Inspector Ltd. Departmental Examination 1998 which was conducted on 13th September, 1998 and the final result of which was declared on 22nd September, 1999. The report mentioned that out of the 38 candidates who were recommended for appointment, the answer booklets of paper-I and paper-II of only 31 candidates were available with the Commission and the remaining were destroyed in August 2000. Of those 31 candidates answer sheets of paper -I of 28 candidates were found to be bogus or forged on account of difference in print paper, ink, fonts and signature of invigilators. Further answer sheets of 3 candidates were suspected to be bearing forged signature of invigilators. MPSC had obtained the opinion of the handwriting expert Shri Mahesh Wagh, Examiner of Documents (Retired) who had opined on 24th January, 2004 that the said 31 answer sheets are forged. On 6th February 2004, MPSC had also informed that out of the said 31 answer sheets, the 28 answer sheets were not printed by their agency. From the said facts, the modus operandi adopted in the Police Sub-Inspector Ltd. Departmental Exam-1998 appeared to be similar to the one adopted by the accused persons in the Asst./STI/PSI-1999 Examination i.e. printing of bogus answer sheets, marking them with correct answers, replacing them with the genuine MPSC answer sheets in the MPSC office by effecting unauthorised entry and committing theft of original answer sheets prior to the scanning of the said answer sheets. The complaint further states that during the course of investigation it was revealed that Accused No.4 Farook Kadge was arrested in ACB CR No.33/02 was a regular visitor to the MPSC, since he was assigned the job of data entry during the period from 1995 to 1998. He thereafter had continued to visit MPSC office on one pretext or other. It was suspected that the said information revealed from the said hard disk was procured by the accused either from the candidates who were the direct beneficiaries, or through his sources in the MPSC by divulging the computer password and copying/stealing/tampering the same from the MPSC computer by effecting unauthorized entry using duplicate keys of the MPSC main door. The accused Farook Kadge, as per the directions of the accused Avinash Sanas in the year 1998, had approached the computer clerk Shri Santosh Pathare of the MPSC computer wing suggesting that he should assist Farook Kadge in carrying out certain malpractices/tampering in the MPSC computer data pertaining to the MPSC examination/selection process. However, Shri Santosh Pathare refused the offer and reported the matter to his superiors. Shri Santosh Pathare confirmed the said fact in his statement recorded on 31st August, 2002. It is further recorded in the complaint that during the course of investigation, it was revealed that accused Avinash Sanas had been continuously indulging in the unlawful activity of manipulating the MPSC Examination result for the preceding 10 years for monitory and economic gain to himself and for others by recruiting new members to his organized crime syndicate. Accused Avinash Sanas is now a suspended Class-I officer, was then working in Mantralaya, Mumbai. He was earlier arrested in a case vide GB CB CID CR No.93 of 1993 u/s 409, 34, 120(B) of Indian Penal Code r/w 4, 7 of the Maharashtra Prevention of Malpractices at University, Board and other Specified examination Act of 1982. It was pertaining to the MPSC paper leakage case. He was later discharged for want of sufficient evidence. The complaint then refers to the involvement of each of the accused persons named in the FIR and the same also invariably refers to examination of the year 1998 as well as information regarding earlier charge-sheet and involvement of some of them in malpractices conducted in relation to the earlier examinations as well as in relation to the examinations held in the year 1999, in respect of which separate C.R. has been registered. The paragraphs 11 and 12 of the said complaint relate to the arrest and seizure of the accused persons and the paragraph 13 relates to CR No.33 of 2002 which is an independent C.R. The paragraphs 14 and 15 of the said complaint are the ultimate conclusions arrived at in the said complaint.
15. It is pertinent to note that as regards the malpractices stated to have been committed by different persons in relation to the examinations held in the year 1999, independent CR being C.R.No.33 of 2002 has been registered and the Special Court has already taken cognizance in respect of the same. As regards the present CR No.6 of 2005 is concerned, plain reading of the contents of the complaint, the same disclose to be relating to the examination of the year 1998. Indeed, the learned APP has no quarrel about the same and he has fairly conceded that the said FIR relates to the malpractices committed during the PSI Departmental Ltd.Examination 1998. Plain reading of the FIR also discloses that the acts of malpractices complained of are in relation to the 1998 examinations and those acts of malpractices comprised of illegal entry in the office of MPSC and the computer room therein, with the use of duplicate keys, replacement of or otherwise interference with the answer sheets of the Paper-I of 28 candidates as they have been found to be bogus or forged with difference in print paper, ink, fonts and signature of invigilators whereas the answer sheets of 3 candidates are suspected to be bearing forged signature of invigilators. It is revealed from the affidavit-in-reply filed by the respondents in some of the Writ Petitions that the said malpractices were revealed after receipt of the report regarding the hard disk and after scanning of the answer books on 10th and 11th May, 1999. It is also stated that the answer sheets were forged and replaced in the MPSC office prior to the scanning and for that purpose, duplicate keys of the office of the MPSC as well as of the computer room in the said office were used and such duplicate keys were recovered from the accused persons. From the date of examination in September, 1998, the answer books were in custody of the Custodian of Examination till 10th of May, 1999 when they were brought in the computer room. However, neither the FIR nor the affidavit-in-reply, nor any material is placed on record to disclose that the alleged acts of malpractices relating to the answer sheets were done on a particular day or during a particular period any time on or after 24th February, 1999. Neither FIR refers to any such date, nor discloses any period of offence during which those malpractices sought to have been done. Undisputedly, the examination was held in September, 1998. It is not in dispute that even in the course of investigation carried out so far, there is no specific material available to show that the alleged forgery or replacement of the answer sheets was carried out on or after 24th February, 1999. At the same time, it is also admitted that before scanning of the papers on 10th and 11th May, 1999, those papers were in the custody of the custodian of the examination who is not the accused person in the matter. Undoubtedly, as per the prescribed procedure, it requires that the examination papers after conclusion of the examination should be kept in a sealed packet. However, the records in the case in hand are not clear as to whether those papers were all throughout kept in sealed packet or not, nor there is possibility of ascertaining the said fact because when the papers were brought in the computer room on 10th May, 1999, it is not known whether they were in sealed packet or not. The register in the computer room does not disclose whether the packets were in sealed condition or in any other form. There is no record available in the MPSC office to ascertain as to upto what point of time the papers were in the sealed packet. It is, however, contention of the respondents that the malpractices relating to the examination papers might have taken place when the papers were brought in the computer room and for that purpose the accused might have used the duplicate keys. It is also the contention of the respondents that there was no security guard posted at the MPSC office during the night hours. In other words, even as on today, the investigating agency is unable to arrive at the conclusion that the alleged acts of replacement of answer sheets were done on or after 24th February, 1999.
16. After the conclusion of the oral argument, the learned APP has filed the written submissions wherein it is stated that "As per report dated 20.2.2004 forwarded by the MPSC office and as annexed to the FIR while describing the result process it is mentioned that the envelopes were received by the Registry Section of the MPSC in sealed condition and without opening the seal they were kept in cupboard wherein it is stored and were also sealed under the signature of the Under Secretary of Desk 13 who is custodian of the papers." If the packets were sealed under the signature of custodian of the papers, whether they were interfered with, and if so, when, how and by whom would be the relevant questions for consideration before recording FIR against any person who could be named as the accused person or persons in that regard. Even though, the materials collected by the investigating agency may be sufficient to create suspicion about involvement of the petitioners in the alleged malpractices, the same nowhere disclose to have committed those malpractices on or after 24th February, 1999. Being so, even assuming that the petitioners could be subjected to the investigation under general law applicable to such situation, the question of applicability of the MCOC Act does not arise till and until it is prima facie disclosed that the said activities were committed either on 24th February, 1999 or anytime thereafter.
17. In fact, the written submissions filed by the learned APP clearly reveal that the respondents neither had any material at the time of grant of approval for recording FIR nor while recording FIR nor have any material even till this day to disclose that the alleged malpractices were committed by the petitioners on or after 24th February, 1999. The claim relating to the offence of organised crime under the MCOC Act by the petitioners is sought to be made solely on the ground that the forged answer sheets were scanned on 10th and 11th of May 1999, on the strength of which the candidates were declared eligible for further examination. In other words, it was on account of scanning of the answer sheets that the fact relating to the forgery or replacement of the answer sheets was revealed to the respondents and therefore it was sought to be contended that the offence was committed after 24th February, 1999. The act of scanning had nothing to do with the activities by the petitioners. That is done by the officials of the MPSC without any intervention of any of the petitioners. It is beyond anybody's comprehension as to how the acts of replacement of answer sheets and forgery in that regard which were done prior to the act of scanning of those papers by MPSC officials can be said to have been done on 10th and 11th May, 1999, on the day of scanning itself, and for that matter, on or after 24th February, 1999.
18. We are aware of the limited scope of the judicial review in the matters where the challenge is to the FIR on the ground that the offence on which the FIR is sought to be registered was not an offence within the meaning of the provisions of the statute under which the investigation is sought to be carried out as the acts constituting the same to be offence under such statute were done prior to enforcement of that statute. Undoubtedly, we are not required to analyse the materials nor can pre-judge the issue, nor we can adjudicate upon the debatable and disputable points and we have to take the FIR as it stands in order to ascertain whether it reveals any offence by the accused under the MCOC Act on or after the day of enforcement of the MCOC Act.
19. As already stated above, the FIR on the face of it, apart from referring to malpractices described in relation to the 1998 examination nowhere discloses any act on the part of any of the accused person in relation to the 1998 examination on or after 24th February, 1999. Nevertheless, as it is the contention of the learned APP that the FIR was lodged not only in respect of the malpractices committed during the PSI Departmental Ltd. Examination 1998 but also in respect of the offence of a conspiracy as alleged and the same came to its logical end and conclusion, when the aim and object of the conspiracy to recruit unmerited candidates to the said examination was achieved on publication of the list of the selected candidates in September, 1999 and that therefore, it is a continuous offence which concluded in September 1999, much after the enforcement of the MCOC Act. For consideration of this contention of the learned APP, even though the theory of continuous offence and conclusion of the offence in September 1999 is nowhere revealed from the FIR or the materials placed on record, it would be necessary to take note of the procedure prescribed for initiating action under the MCOC Act in comparison to the one under the general law, as well as some of the relevant provisions of MCOC Act and then the concept of continuous offence.
20. It is to be noted that MCOC Act which has been brought on the statute book to make special provisions for prevention and control of and for coping with, criminal activity by organized crime syndicate or gang, and for matters connected therewith or incidental thereto. Section 2(e) of the MCOC Act describes what the organised crime is. It defines the organised crime to mean 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 person or promoting insurgency. While the expression "organised crime syndicate" found in the definition of the term organised crime is further described under clause 2(f) to mean a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulge in activities of organised crime, the expression "continuing unlawful activity" is defined under clause (d) thereof. Accordingly, the continuing unlawful activity means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence. It is also to be noted that a person subjected to the proceedings under the MCOC Act cannot have any right to apply for the anticipatory bail and even in case of normal bail, it is subject to various statutory restrictions. Besides, the punishment that can be imposed on conviction is also severe in nature. In terms of Section 3(1)(i), a person committing offence of organised crime resulting in death of any person can be punished with death or life imprisonment with fine of minimum one lakh rupees. In any other case, when the offence does not result in death, in terms of sub-section (ii) thereof, he can be punished with life imprisonment or minimum term of five years, besides minimum fine of rupees five lakhs. Under sub-section (2) of Section 3, any person who conspires or attempts to commit or abets or knowingly facilitates the commission of an organised crime or any act preparatory to such crime as well as any person who harbours or conceals or attempts to harbour or conceal any member of an organised crime syndicate, as also every member of organised crime syndicate can be punished with life imprisonment or minimum term of five years and fine of rupees five lacs. Even the property held by such persons or acquired through such activities can be forfeited to the Government. The Sections 17 to 22 of the MCOC Act provide for special rules of evidence for the purposes of trial and punishment for offences as also certain presumption in certain situations, including the one that the property possessed by such person to have been acquired by illegal activities. Under Section 18 certain confessions by a accused person to a police officer are made admissible in evidence. Section 20 speaks of forfeiture and attachment of the properties of such person. The Section 21 provides for modified application of certain provisions of the Code. The section 22 deals with the subject of presumption as to offences under Section 3 of the MCOC Act.
21. Perusal of various provisions in relation to initiation of the proceedings for commission of the organised crime by any person or persons, it is at once noticed that the cognizance of such offence is not permissible as a matter of course. Section 154 of the Code of Criminal Procedure, 1973, hereinafter called as "the Code", requires an officer-in-charge of a police station to reduce into writing every such information given to him relating to the commission of cognizable offence. Section 157(1) of the Code requires that if, from information received or otherwise, an officer-in-charge of a police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person to take cognizance of such offence. Section 156(1) of the Code clarifies that any officer-in-charge of a police station may, without the order of a Magistrate, investigate any cognizable case while Section 155(2) prohibits the police officer from investigating into non-cognizable cases. Under general law, the commencement of investigation in a cognizable offence is subject to only two conditions. Firstly the police officer should have reason to suspect the commission of a cognizable offence and secondly he should be subjectively satisfied about the sufficiency of the ground for entering on an investigation even before he starts on investigation into the facts and circumstances of the case. However, the proviso to Section 157(1) which permits the police officer to satisfy himself about the sufficiency of the ground even before entering on an investigation postulates that the police officer has to draw his satisfaction only on the materials which are placed before him at that stage, namely, the first information together with the documents, if any, enclosed. ( Vide : State of Haryana and ors. v. Bhajan Lal and Ors. reported in AIR 1992 SC 604 ). However, that is not the case in relation to the offence of organised crime under the MCOC Act.
22. Apart from the fact that the MCOC Act contains special provisions for prevention and control of criminal activity by organized crime syndicate or gang and for matters connected therewith or incidental thereto, Section 23 thereof specifically opens with non obstante clause, viz. "notwithstanding anything contained in the Code". Apart from the said section opening with the non obstante clause, the provisions in relation to the recording of FIR and in respect of the power to investigate in relation to the offence under the MCOC Act, which are comprised under the said Section 23, are clothed with the negative words. Even in relation to the Court's power to take cognizance of any offence under the MCOC Act while clothing provision with negative words, restrictions are imposed in the form of prior sanction for taking such cognizance. Indeed, Section 23 which deals with the subject of investigation as well as cognizance in relation to the offences under the MCOC Act and reads thus:
"23. Cognizance of, and investigation into, an offence.-(1) Notwithstanding anything 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."
23. The law on the point of reading and understanding a statutory provision which contains non obstante clause as well as the provision which is clothed with negative words is well settled. A non-obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions, that may be found either in the same enactment or some other enactment. ( Vide : Union of India and Anr. v. G.M. Kokil and Ors., reported in AIR 1984 SC 1022 Maru Ram v. Union of India and Ors., reported in AIR 1980 SC 2147, A.G. Varadarajulu and anr. v. State of T.N. and Ors., reported in (1998) 4 SCC 231.). It is also well settled that the mode of showing a clear intention of the legislature that the provision enacted is mandatory one is by clothing the command in negative form. The negative words are ordinarily used as the legislative device to make a statute imperative. ( Vide: Mannalal Khetan v. Kedar Nath Khetan and Ors., reported in AIR 1977 SC 536 and M. Pentiah and Ors. v. Muddala Veeramallappa and Ors., reported in AIR 1961 SC 1107 ). It is also well settled principle of law that when the law requires a thing to be done in a particular manner, it should be done in that manner and not in any other manner, and this principle will have to be followed more strictly when an action is accompanied by serious consequences.
24. The Section 23 of the MCOC Act which opens with non-obstante clause and further clothed with negative words clearly discloses the mandate of the legislature that the cognizance of the offences under the MCOC Act should not be in routine course, but only upon the facts disclosing the applicability thereof and satisfaction of the officer of the high rank, the minimum being of the rank of Deputy Inspector General of Police in that regard. In fact, the officer of such high rank is required to decide about the approval even for recording of FIR in relation to any offence under the MCOC Act. This obviously discloses that the approving authority has to apply its mind about the applicability of the provisions of the MCOC Act to the facts disclosed in a matter before allowing the recording of FIR and for that purpose, he must be, prima facie, satisfied about the commission of offence of organized crime under the MCOC Act by the person or persons against whom the FIR is to be recorded. Obviously, for prima facie satisfaction regarding the commission of the offence of organized crime or of participation therein in whatever manner, the approving authority must have some materials before it disclosing the activities of the person or the persons to be of the nature of offence under the MCOC Act and having committed such activities on or after 24th February, 1999. In other words, the activities of a person to be termed as the offence under the MCOC Act, the same should inevitably disclose to have been committed on or after 24th February, 1999. If the activity of the person is relating to the period prior to 24th February, 1999, obviously, it cannot be said to be an offence under MCOC Act, even though the activity may be an offence under THE provisions of some other statute in force at the relevant time. For the same reason, when the approval is granted for recording of FIR and the FIR is recorded, then such FIR should apparently disclose the activities constituting offence under the MCOC Act having been committed on or after 24th February, 1999. When the FIR does not disclose on the face of it that the offence was committed on or after 24th February, 1999, obviously, the concerned authority must be able to establish the said fact, at least, by referring to the records which were available and placed before the concerned authority before granting approval and before recording FIR. It should not be understood that the power vested in the authority under Section 23(1) of the MCOC Act can be exercised either as automaton or as autocrat. The power should be exercised on application of mind to the facts of the case and with necessary prudence and circumspection.
25. Referring to the decision of the Apex Court in the State of Maharashtra and Ors. v. Som Nath Thapa and Ors., reported in (1996) 4 SCC 659, it was sought to be argued by the learned APP that if there is ground for presuming that the accused has committed the offence, a Court can justifiably say that a prima facie case against him exists and so frame a charge against him for committing that offence, and that the word "presume" means to take as proved until evidence to the contrary is forthcoming. There can be hardly any scope for quarrel about the said proposition of law, as the same flows from the decision relied upon. The point however in the case in hand is not whether the offence is committed or not, but assuming it is committed, then whether it was committed on or after 24th February, 1999 so as to enable respondents to invoke the provisions of MCOC Act in relation to the said offence. Though the activities of the petitioners might be disclosing an offence under other statute, unless it is revealed that the activities constituting the offence were done on or after 24th February, 1999, there cannot be any occasion for applying the provisions of the MCOC Act.
26. As already observed above, the FIR No.6 of 2005 on the face of it nowhere discloses any activity of any of the petitioners having been committed on or after 24th February, 1999. On the contrary, it all throughout refers to malpractices committed in relation to the examination held in 1998. Admittedly the examination was held in September, 1998. On the face of FIR, therefore, the contention of the petitioners that it being relating to the activities prior to 24th February, 1999, the FIR could not have been registered under the MCOC Act cannot be said to be without substance. The respondents however as already stated above, the contend that the offence involves conspiracy, and it came to its logical end and conclusion, when the aim and object of the conspiracy to recruit unmerited candidates was attained on publication of the list of the selected candidates in September 1999, and therefore, it was a continuing offence which was concluded in September, 1999 i.e. much after the enforcement of the MCOC Act. Reliance is placed in the decision of the Apex Court in the matter of Gokak Patel volkart Ltd. v. Balu Jeevappa Upparatti and Anr., reported in (1991) 2 SCC 142.
27. There is no doubt that, in case of continuing offence, the limitation for taking action would start from the conclusion of an offence. Applying the same principle for the purpose of taking cognisance of such offence, it has been submitted on behalf of the respondents that the offence was completed in September, 1999, and therefore, it was much after the enforcement of the MCOC Act. In case of a continuing offence, there can hardly be any quarrel about the proposition of law canvassed. Equally, the law on the point that merely because a part of requisites for action under a statute is drawn from the time antecedent to its enforcement, it does not amount to applying the law retrospectively is well settled by the decision of this Court in Jaisingh Asharfilal Yadav and Ors. v. State of Maharashtra and Anr., reported in 2003(3) Mh.L.J. 866 which is relied upon by the learned APP. However, in the case in hand, the allegations against the petitioners regarding commission of offence of organised crime or being members of organised crime syndicate are related to and based on their alleged activities in relation to the malpractices at 1998 examination and those pertain to the acts of replacement of the answer sheets and forgery of signature of the invigilators on the answer sheets, and for carrying out such activities, use of the duplicate keys of the MPSC office and all those acts being for the benefit the unmerited candidates in the said Examination of 1998. That is in brief the complaint disclosed in the FIR. As already observed above, there is nothing in the FIR or any other material on record to show that the alleged replacement of the answer sheets or forgery by the petitioners was on or after 24th February, 1999.
28. It is however sought to be contended on behalf of the respondents that the activities of the petitioners did not merely relate to replacement of the answer sheets but their activities were essentially with a view to help the unmerited candidates to get selected in 1998 examination, even after replacement of such answer sheets, and therefore, those activities continued even after 24th February, 1999 and till the results were declared in September, 1999. Apart from mere contention in that regard, the learned APP is unable to substantiate the said contention by referring to any material either in the FIR or otherwise. In fact, the contention is beyond the scope of the approval obtained for recording of FIR as well as the FIR itself and what has been stated in the FIR. We are aware that the FIR need not be elaborate and need not contain each and every fact leading to an offence. However, it should definitely disclose the basic facts which relate to the malpractices committed by the petitioners named in the FIR in relation to the examination of PSI Departmental Ltd. conducted in the year 1998, particularly in the case where the complaint is only in relation to the malpractices in the said examination. The allegations in relation to the activities of the accused persons pertain to such malpractices of replacement of answer sheets and forgery of signatures of the invigilators relating to "the examination of 1998" and not to the activities relating to "the selection of candidates" for the appointment. Obviously, approval for recording of FIR was in relation to the malpractices comprised of the replacement of the answer sheets and forgery of signatures of the invigilators and no other activity. We must hasten to observe here that if there are other activities by the petitioners or any one of them on or subsequent to 24th February, 1999 in relation to the examination of 1998, certainly nothing prevents the respondents from investigating in respect thereof and to ascertain whether such activities constitute the offence/s under the MCOC Act, but the same would be after following the procedure prescribed under the MCOC Act.
29. As stated above, the complaint relates to malpractices committed in relation to the Examination of 1998 by indulging in specific activities. The complaint is not in relation to malpractices in the selection process. The selection process is different from examination. The term 'selection' implies a process which begins with the issuance of advertisement and concludes with the preparation of select list of candidates for appointment. The whole process of selection consists of various steps like inviting applications, scrutiny of applications, rejection of defective applications, or elimination of ineligible candidates, conducting examination, calling for interview, or vivo-voce and preparation of list of selected candidates for appointment. ( Vide: A.P. Public Service Commission, Hyderabad and Anr. v. V.B. Sarat Chandra and Ors., reported in (1990) 2 SCC 669). The term 'examination', is one of the steps in the process of selection, and it implies act of eliciting and knowing a person's knowledge regarding the subject in respect of which he is examined. It is a methodology to test the knowledge of the subject to the person examined. The allegation in the FIR relates to malpractices in the course of examination and not in the course of selection process. Considering the same and considering the scope of the complaint in the matter, as revealed not only from the FIR but even from the other materials on record, the contention of the respondents that it being a conspiracy and it was concluded on the declaration of the result of the examination of 1998 and that therefore the malpractices continued even after 24th February, 1999, and that, therefore, the provisions of Article 20(1) of the Constitution of India are not attracted, cannot be accepted.
30. It is to be noted that a continuing offence is one which is susceptible of continuance and can be clearl distinguishable from the one which is committed once and for all. In State of Bihar v. Deokaran Nenshi and Anr., reported in (1972) 2 SCC 890, the Apex Court while examining the provisions of Section 66 of Mines Act, 1952, drew distinction between the continuance of offence and the offences which take place when acts or omissions committed once and for all and held that "A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and reoccurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which continues, and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all."
31. The Apex Court in Commissioner of Wealth-tax Amritsar v. suresh Seth, reported in AIR 1981 SC 1106, while drawing distinction between the continuing offence and other types of offence, it was observed that "the distinctive nature of a continuing wrong is that the law that is violated makes the wrong doer continuously liable for penalty. A wrong or default which is complete but whose effect may continue to be felt even after its completion is, hjowever, not a continuing wrong or default." The decision in Gokak Patel's Case (Supra) reiterates its earlier decisions.
32. Bearing in mind the law on the point of continuing offence, if one peruses the FIR in question, it has been clearly stated that a conspiracy to recruit unmerited candidates in the PSI Departmental Ltd. Examination 1998 is detected in the investigation of ACB C.R.No.33/2002 by way of seizure of hard disk from accused Farook Kadage, its forensic analysis and report confirming the same received from MPSC. Obviously, the conspiracy for the recruitment of the unmerited candidates in the 1998 examination which is stated to have been revealed from the acts of the eight accused persons refers to the acts of possessing duplicate keys of the office of the MPSC and that of computer room in MPSC office, recovery of hard disk and replacement of the answer sheets and forgery of the signatures of the invigilators. It nowhere refers to any other act and certainly, no reference to any act committed on or after 24th February, 1999.
33. Ex facie, therefore, in the absence of any material disclosing any activity on the part of any of the petitioners in respect of the said 1998 Examination, on or after 24th February, 1999, either as an independent act or as continuing activity of the act in that regard committed earlier to 24th February, 1999, the authority could not have granted approval for recording the FIR, nor the FIR under the MCOC Act would have been recorded in relation to the activities pertaining to which it has been registered. Merely because the malpractices committed in relation to the examination held in September, 1998 have helped the candidates in securing favourable result which was declared in September, 1999, that would not make those malpractices in the examination of 1998 to be the continuing offence till September, 1999.
34. A proposition is sought to be canvassed on behalf of the respondents that "at the stage of granting approval for investigation the authority has to see whether there is a prima facie material for investigation of the offence under the MCOC Act and the authority has not to record a finding that there is a prima facie material about the commission of the offence. That stage comes as far as authorities concerned while granting sanction for filing the charge sheet under Section 23(2) by an authority which is superior to the authority granting approval under Section 23(1)(a)." This submission has two parts. Firstly, it is in relation to approval for recording FIR and secondly it is in relation to sanction for filing charge sheet. The contention that for grant of approval for recording FIR under the MCOC Act, the material should prima facie disclose the case for "investigation" only and not about the "commission of offence" is to be rejected in limine, not only being devoid of substance but if accepted, could lead to absurd and anomalous result. At this stage, one has to take note of certain provisions of the Code. Section 154 of the Code clearly states that "every information relating to the commission of a cognizable offence, if given orally ............................" Evidently, under the general law, the question of recording of FIR would arise moment "a cognizable offence" is informed to the police officer. FIR is not to be recorded merely because the police authorities consider the information given is worth investigating, but it has to be registered moment the information disclosed to the police reveals commission of cognizable offence. Therefore, "commission of cognizable offence" is the essence of FIR. Moment commission of cognizable offence is recorded, the police are bound to investigate in view of the provisions of law comprised under Section 157 read with Section 154 of the Code. The law on this point is well settled by the decision of the Apex Court in Bhajan Lal's Case (supra). There can be no investigation without FIR and there can be no FIR without cognizable offence being disclosed. Similarly, there can be no FIR under the MCOC Act unless there being commission of offence under the MCOC Act is disclosed. Albeit, when we say commission of offence, it is merely prima facie disclosure of commission of any offence under the MCOC Act. Undoubtedly, as far as the persons involved in the commission of offence are concerned, it may be mere suspicion against them, which perhaps would be sufficient for the purpose of commencement of the investigation, but, the fact of commission of offence on or after 24th February, 1999 must be disclosed. It is not enough to have mere suspicion regarding the commission of offence on or after a particular date.
35. Referring to Section 11 of the MCOC Act, it is sought to argue that the Special Court is empowered to transfer a case to regular Court if it comes to conclusion that no offence is made out under the MCOC Act. It is totally irrelevant submission. Undoubtedly, the Special Court is empowered to transfer the case to a court of competent jurisdiction if it comes to conclusion that it has no jurisdiction to try the offence, but that does not mean that the police authorities, on fanciful grounds can disgrace any disliked face under the cloud of his involvement in the offence of organized crime under the MCOC Act. Even in sessions cases under Section 227 and in warrant cases under Section 239 of the Code, the courts are empowered to discharge the accused in case of insufficiency of ground or the charge being groundless, by recording the reasons for discharge. Does it mean that even in case of bar of limitation or non-cognizable cases that the police would be entitled to investigate and prosecute the persons ? Writ Court cannot be a silent spectator to such illegalities on the part of investigating agencies, because such proceedings amount to sheer harassment without fruitful result. The view that we are taking in the matter is fortified by the recent decisions of the Apex Court in Netai Dutta v. State of West Bengal reported in 2005 AIR SCW 1326 and Pawan Kumar Bhalotia v. State of West Bengal, reported in 2005 AIR SCW 1328.
36. The FIR is also sought to be challenged on the ground that the same has been recorded and the investigation is being carried out by a police officer not of the rank of the Deputy Superintendent of Police, and therefore, it being contrary to the provisions of law comprised under Section 23(1) of the MCOC Act, the same is bad in law and needs to be quashed. The grievance of the petitioners is that the investigation officer is of the rank of Police Inspector and assumes designation of Assistant Commissioner of Police merely on account of being in the office of the Anti Corruption Bureau and that he does not belong to the rank of Deputy Superintendent of Police. The submission is sought to be countered by relying upon the order by which the Investigation Officer stated to have been promoted to the post of Deputy Commissioner of Police in the department of the Anti Corruption of Bureau. However, it has been candidly admitted by the learned APP that such promotion is a temporary promotion and though he assumes designation of Assistant Commissioner of Police, while he was in the Anti Corruption Bureau, the moment he is sent to the parent department, he continues to be in the post and the rank of Inspector. Obviously, the present appointment in the post of Assistant Commissioner of Police in Anti Corruption Bureau is merely for a limited period during which the officer is working in the said Anti Corruption Bureau. By such posting he not assume rank of the Assistant Commissioner of Police. Section 23(1)(b) of the MCOC Act clearly requires the investigation to be carried out by the police officer not below the rank of Deputy Superintendent of Police. The term "rank" is different from the term "designation". Merely because the Inspector assumes the designation of ACP, while he is working in the Anti Corruption Bureau, he does not belong to the rank of Deputy Superintendent of Police. Having realised the same, the learned APP fairly conceded that the investigation has to be carried out by the person holding the rank of Deputy Superintendent of Police and not merely by a person of the rank of the Inspector even though he is designated as ACP while working in the Anti Corruption Bureau, and that the needful in that regard would be done. We accept the said submission made by the learned APP and considering the same, it is not necessary to deal with the challenge to the investigation on the ground that the same is being carried out by the Police Officer below the rank of Deputy Superintendent of Police. In any case, once the FIR under the MCOC Act itself is bad in law, the question of investigation pursuant to such FIR under the MCOC Act does not arise at all. We again hasten to observe that this does not debar the respondents from investigating into the activity, if any, of the petitioners, done after 23rd February, 1999, if such activity discloses malpractices activity to organised crime under the MCOC Act, albeit after following the procedure prescribed under the MCOC Act.
37. As regards the recording of FIR, the same need not be recorded by a person of the rank of the Deputy Superintendent of Police. It can be recorded by any other police officer; however the only pre condition for the same is that it should have prior approval of the police officer of not below the rank of the Deputy Superintendent of Police. Undoubtedly, the investigation has necessarily to be carried out by any police officer of the rank of Deputy Superintendent of Police.
38. The fall out of the above discussion is that it is to be held that in the absence of material about commission of the offence under the MCOC Act by the petitioners on or after 24th February, 1999, the authority could not have granted the approval for recording FIR under the MCOC Act, nor there could have recorded the FIR under the MCOC Act for the alleged activities, unless the activities were done on or after 24th February, 1999. It is, therefore, apparent that the FIR No.6 of 2005, so far as it relates to the offences under the MCOC Act and the approval for recording of such FIR granted under Section 23(1)(a) of the MCOC Act cannot be sustained, and are liable to be quashed to that extent. However, the FIR No.6 of 2005 as far as it relates to the offences under the other statutes needs no interference at this stage. All the objections in respect of the FIR under other provisions of law, including the one that it is a second FIR need not be dwelt with at this stage in writ jurisdiction. The petitioners can very well raise those objections before the concerned Court in case of filing of the charge sheet in respect of such other offences disclosed in the said FIR.
39. Once the FIR No.6 of 2005, so far as it relates to the offences under the provisions of law comprised under the MCOC Act and the approval for recording of such FIR are quashed and set aside, it is not necessary to deal with various other grounds sought to be raised by the petitioners in the petitions.
40. All the petitions, therefore, partly succeed. The approval granted under Section 23(1)(a) of the MCOC Act for recording of FIR in relation to the said malpractices at the September 1998 examination and the FIR No.6 of 2005 so far as it relates to the offences under the MCOC Act is concerned, the same are hereby quashed and set aside. Rule in all the petitions is made absolute in above terms with no order as to costs.