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72. The provisions of section 23 of MCOCA deal with cognizance of, and investigation into, an offence. Sub-section (1) of section 23 deals with the powers of investigating agency whereas sub-section (2) deals with the powers of the Special Court to take cognizance subject to previous sanction. Sub-section (1) begins with a non-obstante clause. Clause (a) thereof provides that notwithstanding anything contained in the Code, " no information" about the commission of an offence of organised crime under MCOCA, 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. Clause (b) of sub-section (1) provides that notwithstanding anything contained in the Code, no investigation of an offence under the provisions of MCOCA shall be carried out by a police officer below the rank of the Deputy Superintendent of Police. Sub-section (2) of Section 23 deals with the power of the Special Court by which no Special Court is empowered to take cognizance of any offence under MCOCA without the "previous sanction" of the police officer not below the rank of the Deputy Superintendent of Police. A bare perusal of section 23 makes it explicitly clear that it provides threefold protections/safeguards before the Special Court takes cognizance of any offence under this Act i.e, (i) prior approval for recording and registration of an "information"; (ii) investigation by a senior police officer; and (iii) the previous sanction for taking cognizance of the offence under MCOCA. The submission that these protections cannot be whittled down or rendered nugatory by maintaining a private complaint and by passing an order under section 156(3) of the Code, will stand addressed at the end of this judgment.

It is clear from the facts of this case that the cognizance of the offence under the provisions of TADA was taken on the basis of the information recorded by the police and not on the basis of a "private complaint" and against that backdrop the Apex Court had observed that taking cognizance of the offence without "valid sanction" is without jurisdiction and any proceedings adopted thereunder will also be without jurisdiction. A plain reading of sub-section (2) of Section 23 in the light of the aforesaid observations would clearly show that the previous sanction as contemplated therein is sine-qua-non in order to enabling the Special Court to take cognizance of the "offence" under MCOCA recorded "on information to the police". In other words, a valid sanction is sine-qua-non for enabling the prosecuting agency to approach the Court in order to enable it to take cognizance of the offence under MCOCA as disclosed in the police report forwarded by the competent police officer after carrying out an investigation with prior approval as contemplated by section 23(1) of MCOCA. It is thus clear that the ratio laid down by the Supreme Court in both these cases would apply whenever the offence under MCOCA is recorded on the information to the police, investigated and taken cognizance of by the Special Court without "prior approval" and "sanction" as contemplated by section 23 of MCOCA and in that case the proceedings would vitiate. It is very pertinent to notice that in both the aforestated cases the provision of section 14(1) of TADA which is para materia with section 9(1) of MCOCA and the question whether a private complaint is tenable and directions for investigation could be given under section 156(3) of the Code was not under consideration of the Supreme Court. However, the question that falls for our consideration is whether sanction contemplated by section 23(2) is sine-qua-non for taking cognizance upon receiving a private complaint as contemplated by section 9(1) of MCOCA.

81. A conjoint reading of Sections 9 and 23 of MCOCA would show that a clear distinction is made between a "complaint" contemplated by section 2(d) of the Code and recording of an "information" by the police about the commission of an offence of organised crime. Reference to "police report" in Section 9(1) is to the report under section 173(2) of the Code which police would forward to the Special Court on completion of the investigation directed under section 156(3) of the Code. Though there is no specific reference to a police report in Section 23, the Special Court is empowered to take cognizance of a report being filed after completing the investigation of the "information" recorded and investigated as provided for in sub-section (1) of Section 23 of MCOCA. The word "information" in Section 23(1) means "first information report" contemplated by section 154 in Chapter XII of the Code inasmuch as it has not been defined in MCOCA. A reference to "police report" in sub-section (1) of Section (9) and "police report" contemplated by section 23 are independent of each other. In other words, a "police report" in sub- section (1) of Section 9 means a report that would be forwarded by the police on completion of the investigation under section 173(2) of the Code made on the basis of the "private complaint". Whereas a "police report" under section 23 would be on the basis of an "information" recorded by the police and after carrying out the investigation by a senior police officer with the prior approval under sub-sections (1) (a) of Section 23. This is further clear from the language of Sections 9(1) and 23(2). The phraseology employed in Section 9(1), "may take cognizance" empowers the Special Court to take or not to take cognizance of a "complaint" or a "police report" whereas under section 23(2) the phraseology employed is "shall take cognizance". No option is left to the Special Court for the reasons recorded earlier. Thus, Section 9(1) and Section 23 are independent of each other and work in a totally different sphere. The language or the phraseology employed by the legislature is precise and plain and it proclaims the legislative intent in unequivocal terms and hence the same must be given effect to, regardless of the consequences that may follow. It is against this backdrop, though we agree with the opinion expressed by the Division Bench in Criminal Writ Petition No. 1772 of 2004 holding that the Special Court has power to take recourse to the provisions of the Code while dealing with a private complaint, we find it difficult to persuade ourselves to agree with the view that the provisions of section 23(2) of MCOCA are sine-qua-non for taking cognizance of a complaint under section 9(1). Except the conclusions arrived at in paragraph 39(b) and (c) partly of that judgment, we agree with all other conclusions arrived at in the Judgment of the Division Bench in Criminal Writ Petition No. 1772 of 2004. Similarly we are unable to persuade ourselves to agree with the ratio laid down by the Division Bench in Criminal Appeal No. 1451 of 2004 decided vide Judgment pronounced on 21.12.2004, requiring a private complainant to approach the police agency and/or requiring the Special Court to forward such complaint received from a private individual for compliance of the conditions stipulated in Section 23 of MCOCA.

86. It was strenuously urged that the provisions of Sections 156 and 190 read with the provisions of Chapter XV are inconsistent with the provisions of Section 23 of MCOCA. We have already observed that the provisions of section 9(1) are independent of the provisions of Section 23 and they are not controlled or subject to the provisions of section 23. Section 9(1) independently gives powers to the Special Court to entertain a "complaint" or a "police report" and decide whether or not to take cognizance of any offence under MCOCA. It is well settled rule of interpretation that a statute has to be construed according to the intent of them that make it and the duty of the Court is to act upon the true intention of the legislature. Further the provisions of the Statute are meant for its enforcement and that should be the approach while dealing with such provisions. Reading of MCOCA as a whole would show that whenever and wherever the legislature intended the provisions of the Code to be followed or not to be followed, it has so indicated by employing a non obstante clause in all such provisions. For instance, Section 6 which deals with jurisdiction of a Special Court. It begins with non-obstante clause and declares that notwithstanding anything contained in the Code, every offence punishable under this Act shall be triable only by the Special Court within whose local jurisdiction it was committed, or as the case may be, by the Special Court constituted for trying such offence under sub-section (1) of Section 5. By employing a non-obstante clause, the legislature made it clear that under any circumstances jurisdiction of the Special Court would be controlled by this provision and not by the provisions of the Code. There are several such provisions in MCOCA which begin with a non-obstante clause including Section 23. Section 21 deals with modified application of certain provisions of the Code which also begins with a non-obstante clause. Sub-section (1) of Section 21 of MCOCA clearly provides that notwithstanding anything contained in the Code or in any other law, every offence punishable under this Act, shall be deemed to be a cognizable offence within the meaning of clause (c) of Section 2 of the Code and "cognizable case" as defined in that clause shall be construed accordingly. Sub-section (2) of section 21 has modified section 167 of the Code. Sub-section (3) bars the application of section 438 of the Code. Sub-sections (4), (5) and (6) further put fetters on the powers of Court for release of the accused on bail. Section 25 provides for overriding effect of the provisions of MCOCA, which states that the provisions of MCOCA or any rule made thereunder or any order made under any such rule shall, have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having the force of law. It is thus clear that the provisions of the Code can be taken recourse to by the Special Court as long as such access is not denied by employing a non-obstante clause and the provisions to which recourse was taken by the Special Court, are not inconsistent with the provisions of MCOCA.