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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.

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.

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.