Thus, survey of the entire discussion
illustrates :
(a) Section 21 (7) of MCOC Act has
overriding effect to section 167 of Cr.P.C. NIA Act permits new agency to take over pending investigation.
(b) NIA Act does not restrict the investigating agency to investigate or further investigate into the pending cases, it is retrospective in its application.
(c) Effect of section 309 Cr.P.C. will not obliterate provisions of section 21 (7) of MCOC Act, a special statute.
Bombay High Court
Lt.Col.Prasad Shrikant Purohit vs National Investigation on 20 October, 2011
JUDGMENT
1. Heard. Rule. Rule made returnable
forthwith. With consent of the parties,
matter is finally heard.
2. This Petition is under Article 227 of the
Constitution of India and section 482 of the
Code of Criminal Procedure. The Petitioners
are Accused in MCOC Act Special Case No.1 of
2009 and 8 of 2011 on the file of the learned
Special Court Judge under MCOC Act for Greater
Bombay.
3 CRWP NO.2136/2011
3. An Application under section 21 (7) of
Maharashtra Control of Organised Crime Act,
1999 (MCOC Act) was moved by the respondent-
National Investigation Agency (for short NIA)
for interrogation of the Petitioner Ramesh
(Accused no.4) Purohit (Accused no.9) and
Sudhakar (Accused no.10). The Petitioners were
earlier in police custody for 12,18,20 days
respectively. The MCOC case was initially
investigated by Special Anti Terrorist Squad
(ATS), Mumbai and final report under section
173 of Code of Criminal Procedure, 1973
(Cr.P.C.) was submitted on 30.1.2009 and
supplementary charge sheet vide MCOC case no.8
of 2011 was filed on 21.4.2011.
4. By order dated 1st April,2011 of the
Ministry of Home Affairs, Government of India,
investigation is taken over by NIA and FIR is
registered at crime No.5/2011 by PS. NIA on
13th April, 2011. While the Petitioners were
in judicial custody permission was sought to 4 CRWP NO.2136/2011
interrogate them by visiting the jail. It was
accordingly granted. However, during such
interrogation, NIA felt that the Petitioners
have lot of information to communicate
concerning two absconding accused namely
Sandip Dange and Ramji Kalsangra. They are
also having crucial information regarding the
facts which are not so far surfaced in the
investigation and consequently by an
Application, police custody was sought as the
Petitioners were to be confronted with new
facts which have been emerged.
5. The learned Judge allowed Misc.Application
No.98/2011 permitting police custody to the
Petitioners for 8 days from 22.7.2011 up to
30.7.2011. This order is questioned by the
Petitioners.
6. Mr.Lalit and Mr.Shivade for Petitioners
exhaustively dealt with the law applicable
namely, MCOC Act and The National 5 CRWP NO.2136/2011
Investigation Agency Act, 2008 (34 of 2008)
(for short NIA Act) to interpret the
respective position vis-a-vis applicability of
Cr.P.C. and how the prosecution (NIA) could
not exhaust the remedies under MCOC Act and in
particular taking umbrella of section 21 (7)
of MCOC Act.
7. During the course of submissions, it was
canvassed by learned counsel for Petitioners
in identically placed situation, judgment
delivered by this Court in the matter of
IQBAL HUSSAIN KASKAR VS STATE OF MAHARASHTRA
REPORTED IN 2003 ALL MR (Cri) 1817 is not
depicting correct position of law owing to
earlier judgment of Supreme Court in STATE VS
DAWOOD IBRAHIM KASKAR reported in 1997 CR.L.J.
2989 and consequently judgment of IQBAL
HUSSAIN KASKAR is per in-curiam.
8. Three basic points as canvassed by the 6 CRWP NO.2136/2011
learned counsel for the petitioners emerge:
a) Can NIA make an application under section 21 (7) of MCOC Act as it is only the authorities who investigated originally the matter under MCOC Act and submitted charge sheet alone can file an Application under MCOC Act ?
b) Whether NIA Act is retrospectively applicable to the investigation already completed when charge sheet is filed and the matter is subjudice before the competent Court ?
c) Whether accused who were in judicial custody and being produced under section 309 of Cr.P.C. can be remanded to police custody after long lapse of period ?
9. Following are undisputed facts in the
present case :
(a) The offence in question is dated 29.9.2008.
(b) NIA Act came into force on 31.12.2008.
(c) NIA investigates scheduled offences as specified in the schedule in terms of section 2 (1) (f) of the NIA Act.
(d) Permission/order of the Central Government is dated 1.4.2011 to take further investigation.
7 CRWP NO.2136/2011
(e) Petitioners are in custody from November, 2008.
(f) The scheduled offences as specified in the schedule in terms of section 2 (1)(f) of National Investigation Agency Act, 2008 incorporate apart from Unlawful Activities Prevention Act, 1967 (UAP Act) offences under Indian Penal Code (IPC).
10. Reliance was placed to the judgment
reported in AIR 1988 SUPREME COURT 1932 to
explain that an elementary rule that the
construction of a section is to be made of all
parts together . It is said, there is normal
presumption that all Acts are prospective
unless the contrary can be inferred.
11. In STATE THROUGH CBI vs DAWOOD IBRAHIM
KASKAR 2010 SCCs 438 interpretation of section
309 (2) of Cr.P.C. is mostly surfacing.
Honourable Supreme Court observed in para
10 and 11 as under :
8 CRWP NO.2136/2011
10. In keeping with the provisions of section 173 (8) and the above quoted observations, it has now to be seen whether section 309 (2) of the Code stands in the way of a court, which has taken cognizance of an offence, to authorise the detention of a person who is subsequently brought before it by the police under arrest during further investigation in police custody in exercise of its power under section 167 of the code. Section 309 relates to the power of the court to postpone the commencement of or adjournment of any inquiry or trial and sub-section (2) thereof reads as follows :
309 (2) If the court, after taking
cognisance of an offence, or commencement of trial, finds it necessary or advisable to postpone
the commencement of, or adjourn, any inquiry or trial it may form time to time for reasons to be recorded
postpone or adjourn the same on such terms as it thinks fit for such time as it considers reasonable and may by a warrant remand the accused if in
custody under this section for a term exceeding fifteen days at a time.
Provided that no Magistrate shall
remand an accused person to custody under this section for a term exceeding fifteen days at a time.
11. There cannot be any manner of doubt that the remand and the custody referred to in the first proviso to the above sub section are different from detention in custody under section 167. Whole remand under the former relates to a stage after 9 CRWP NO.2136/2011
cognisance and can only be to judicial custody,detention under the latter relates to the stage of investigation and can initially be either in police custody or judicial custody. Since however even after cognisance is taken of an offence the police has a power to investigate into it further which can be exercised in accordance with chapter XII, we see no reason whatsoever why the provisions of section 167 thereof would not apply to a person who comes to be latter arrested by the police in course of such investigation. If section 309 (2) is to be interpreted as has been interpreted by the Bombay High Court in Mansuri to mean that after the court takes cognisance of an offence it cannot exercise its power of detention in police custody under section 167 of the code, the investigating agency would be deprived of an opportunity to interrogate a person arrested during further investigation, even if it canon production of sufficient materials, convince the court that his detention in its (police )custody was essential for that purpose. We are therefore of the opinion that the words accused if in custody appearing in section 309(2) refer and relate to an accused who was before the court when cognizance was taken or when enquiry or trial was being held in respect of him and not to an accused who is subsequently arrested in course of further investigation./ So far as the accused in the first category is concerned, he can be remanded to judicial custody only in view of section 309 (2) but he who comes under the second category will be governed by section 167 so long as further investigation continues. That necessarily means that in respect of the latter the court which had taken 10 CRWP NO.2136/2011
cognizance of the offence may exercise its power to detain him in police custody subject to the fulfilment of the requirements and the limitation of section
167.
12. While interpreting the term trial
learned counsel has placed reliance to the
judgment in the matter of STATE OF BIHAR VS
RAM NARESH 1957 SUPREME COURT 389 (dated
31.1.1957).
There is hardly anything in this
definition which throws light on the question whether the word trial is used in the relevant section in a limited sense as excluding an inquiry. The word trial is not defined
in the Code. Trial according to Stroud's judicial Dictionary means the conclusion by a competent Tribunal of question in issue in legal proceedings whether civil or criminal (Stroud's Judicial Dictionary third A.D. Vol.4 P 3092) and according to Wharton's Law Lexicon Means the hearing of a cause civil or criminal before a Judge who has jurisdiction over it, according to the laws of the land (Wharton's law Lexicon 1`4 EDL P 1011). The words tried and :trial appear to have no fix or universal
meaning. NO doubt, in quite a number of sections in the Code to which our attention has been drawn the words tried and trial have been used in the sense of 11 CRWP NO.2136/2011
the reference to a stage after the
inquiry. That meaning attaches to the words in those sections having regard to the context in which they are used. There is no reason why where these words are used in another context in the Code, they should necessarily be limited in their connotations and significance. They are words which must be considered with regard to the particular context in which they are used and with regard to the scheme and purpose of the provision under consideration."
13. Mr.Lalit interpreted section 6, section
10, section 3 (2) (8) (10), section 13 of NIA
Act. He informed, the charge sheet having
been filed, no fresh investigation is
permissible. By virtue of NIA coming into
play a new investigation agency comes into
picture and re-investigation or fresh
investigation, is not permissible. By virtue
of section 173 (8) Cr.P.C. further
investigation can only be restricted to
Malegaon Bomb Blast case but by same agency.
In order to stress his points, reliance is
placed to the judgment of K.CHANDRASHEKAR VS 12 CRWP NO.2136/2011
STATE OF KERALA 1998 SUPREME COURT (Cri) 1292
para 24 therein which reads as under :
From a plain reading of the above
section it is evident that even after submission of a police report under sub section (2) on completion of investigation the police has a right of further investigation under sub section(8) but not fresh investigation or reinvestigation. That the Government of Kerala was also conscious of this position is evident from the fact that though initially it stated in the Explanatory note of the notification dated 27.6.1996 (quoted earlier) that the consent was being withdrawn in pubic interest to order a reinvestigation of the case by a special team of state police officers in the amendatory notification (quoted earlier) it made it clear that they wanted a further investigation of the case instead of reinvestigation of the case. The dictionery meaning of further (when used as an adjective) is additional more supplemental. Further investigation therefore is the continuation of the earlier investigation and not a fresh investigation or re investigation to be started abinitio wiping out the earlier investigation altogether. In drawing this conclusion we have also drawn inspiration from the fact that sub section (8) clearly envisages that on completion of further investigation the investigating agency has to forward to the Magistrate a further report or reports and not fresh report or reports -regarding the further evidence obtained during such investigation. Once it is accepted and it has got to be 13 CRWP NO.2136/2011
accepted in view of the judgment in Kazi Lhendupo Dorji- that an investigation undertaken by CBI pursuant to a consent granted under section 6 of the Act is to be completed notwithstanding withdrawal of the consent and that further investigation is a continuation of such investigation which culminates in a further police report under subsection (8)of section 173 it necessarily means that withdrawal of consent in the instant case would not entitle the state police to further investigate into the case. To put it differently, if any further investigation is to be made it is the CBI alone which can do so for it was entrusted to investigate into the case is patently invalid and unsustainable in law. In view of this finding of ours we need not go into the questions whether section 21 of the General clauses Act applies to the consent given under section 6 of the Act and whether consent given for investigating into crime No.246 of 1994 is redundant in view of the general consent earlier given by the State of Kerala.
He submits NIA indeed has attempted in
hijacking of completed investigation and
accelerates illegal police custody. Agencies
need not be changed. It is a different
investigation. NIA does not deal with
originally completed investigation. Learned
counsel interpreted section 6 (1) to section 6
(4) to mean that they will be applicable after 14 CRWP NO.2136/2011
the Act came into force on 31.12.2008 and
consequently it would not be applicable
retrospectively to the present case of
Malegaon Bomb Blast, as NIA Act does not
specify authorizing investigation of pending
cases.
14. Learned A.S.G. Mr.Khambatta has criticized
the submissions as according to him they are
misconceived and not depicting correct legal
position. The judgment of DAWOOD IBRAHIM
KASKAR would not be applicable as it relates
to provisions of section 309 Cr.P.C. and in
particular deals with judicial custody while
the matter of IQBAL KASKAR (2003 ALL M.R.
1817) was on the point of applicability of
MCOC Act, 1999 and in particular effect of
section 21 (2), MCOC Act, vis-a-vis section
167 of Cr.P.C.
15. NIA Act does not deal with a new offence. 15 CRWP NO.2136/2011
It is a agency relating to only investigation
and prosecution. Mr.Khambatta stressed to read
the preamble of NIA Act which informs to
investigate and prosecute offences affecting
the sovereignty, security and integrity of
India, security of State. According to him,
the scheme of NIA Act also clearly establish
that no new offence and indeed no offence at
all is created by NIA Act. It is purely
procedural in nature constituting a special
agency, namely, National Investigation Agency
for offences and prosecution of scheduled
offences.
16. The learned A.S.G. submits, Petition
lacks merit as it does not challenge the order
dated 1st April, 2011 of Central Government
which has exercised powers under section 6 (5)
of NIA Act to transfer further investigation
of 2008 Malegaon Blast Case to NIA. NIA Act
contemplates transfer of pending investigation
to NIA.
16 CRWP NO.2136/2011
17. Learned A.S.G. has placed reliance to the
judgment of MAULAVI HUSSEIN HAJI ABRAHAM
UMARJI VS STATE OF GUJRAT AIR 2004 SUPREME
COURT 3946 para 27 thereof. He has
distinguished the judgment of ANUPAM KULKARNI
vs C.B.I. 1992 (3) SCC 141 to be a judgment in
terms of section 167 of Cr.P.C. Consequently,
the observations therein would be restricted
to cases governed exclusively by virtue of
section 167 of Cr.P.C. which include police
custody cannot exceed the period specified
under section 167 of Cr.P.C. Learned counsel
reiterates ANUPAM KULKARNI's case has no
application to cases where the provision of
other special or local laws apply which have
an overriding effect over the Cr.P.C. or which
were to read, as providing power to
interrogate in police custody additional to
the powers conferred by the Cr.P.C. 17 CRWP NO.2136/2011
18. In the light of rival contentions, let us
analyse the relevant provisions of NIA Act.
Section 6 of NIA Act, deals with investigation
of scheduled offence:
(1) On receipt of information and recording thereof under section 154 of the Code relating to any scheduled offence the officer in charge of the police station shall forward the report to the State government forthwith.
(2) On receipt of the report under sub section (1) the State government shall forward the report to the central government as expeditiously as possible.
(3) On receipt of report from the state government the central government shall determine on the basis of information made available by the state government or received from other sources within fifteen days from the date of receipt of the report whether the offence is a scheduled offence or not and also whether having regard to the gravity of the offence and other relevant facts it is a fit case to be investigated by the agency.
(4) where the central government is of the opinion that the offence is a scheduled offence and if it is a fit case to be investigated by the agency it shall direct the agency to investigate the said offence.
(5) Notwithstanding anything contained in this section if the central government is 18 CRWP NO.2136/2011
of the opinion that a scheduled offence has been committed which is required to be investigated under this act it may suo motu direct the agency to investigate the said offence.
(6) where any direction has been given under sub section (4) or sub section (5) the state government and any police officer of the state government investigating the offence shall not proceed with the investigation and shall forthwith transmit the relevant documents and records to the agency.
(7) For the removal of doubts it is hereby declared that till the agency takes up the investigation of the case it shall be the duty of the officer in charge of the police station to continue the investigation.
19. Section 6 (1) to 4 indeed contemplate a
mechanism for appointment of NIA by the
Central Government. Section 6 (5) starts with
non obstante clause, naturally would absolve
effect created by section 6 (1) to section 6
(4). Reading section 6 (5) under which
Central Government's order dated 1st April,2011
has come into play, nowhere suggests that
investigation under NIA Act has to be
commenced by NIA and cannot include a pending 19 CRWP NO.2136/2011
investigation which has taken over by NIA.
20. Section 2 (1) (i) of NIA Act indicates
the words and expression used but not defined
in this Act and defined in the Code shall have
meaning respectively assigned to them under
the Code. Section 2 (h) of Cr.P.C. deals with
investigation which includes all the
proceedings under the Code for collection of
evidence conducted by a police officer. The
term investigation in section 2 (h)of
Cr.P.C. is wide which embraces and encompasses
collection of evidence and it is not limited
or fetter to investigation at or before any
particular stage of the trial. It can even
include further investigation or investigation
at any stage of trial including after framing
of the charge. The term investigation
includes further investigation of the nature
specified in section 173 (8) of Cr.P.C. 20 CRWP NO.2136/2011
21. I do not agree to Mr.Lalit/Shevade that
section 6 does not provide for carrying out
investigation for offences already having
taken place and the term investigation could
not include further investigation in terms of
section 173 (8) of Cr.P.C. The language used
in section 6 of NIA Act contemplate
investigating the offence by State police
"shall not proceed with investigation and
shall forthwith transmit investigation to
NIA". This unambiguously illustrate of rights
to investigate in pending cases even handled
by State Police.
22. Section 7 (b) of NIA Act speaks of power
of the Central Government to transfer case to
the State Government for investigation and
trial of the offence. Then, Section 8 of the
NIA Act provides as under :
"Power to investigate connected offences:
While investigating any scheduled offence the agency may also investigate 21 CRWP NO.2136/2011
any other offence which the accused is alleged to have committed if the offence is connected with the scheduled offence.
23. Consequently, by virtue of section 8, NIA
has been benedicted with power and
jurisdiction even to investigate offences
which are not scheduled offences as long as
offences are connected with scheduled
offences.
24. NIA Act is a special Act while Cr.P.C. is
a general Act. The special Law will prevail
over the general one, as observed by Hon'ble
Supreme Court in ASHOKA MARKETING VS PUNJAB
NATIONAL BANK AIR 1992 SUPREME COURT 855 para
15). The legal position in respect of the
provisions of section 25 of MCOC Act having a
overriding effect over provisions of Cr.P.C.
was indicated by the Hon'ble Supreme Court in
AIR 2009 SUPREME COURT 2781. (JAMIRUDDIN
ANSARI VS CENTRAL BUREAU OF INVESTIGATION). 22 CRWP NO.2136/2011
25. It was canvassed by the Petitioners that
further investigation under section 173 (8) of
Cr.P.C. cannot be taken by NIA being a new
agency. However, reading section 6 (5) of the
NIA Act and effect of section 6 (1) to 4
together, investigation certainly can be
carried of a pending offence which a Police
Officer of the State Government are
investigating. This rules out the contention
that further investigation in respect of the
offences already taken place cannot be taken
over by a special agency under the NIA Act.
26. Mr.Shevde has invited my attention to the
submissions advanced before the learned
Special Judge as to intention of the agency to
move the Petitioners out of State of
Maharashtra for making inquiries and according
to him, this tantamounts to carrying out
investigation in other offences which would be
a fresh investigation, barred under the 23 CRWP NO.2136/2011
statute. However, since it has been clarified
by the respondents that as FIR by NIA is
registered at New Delhi, the petitioners would
be carried for interrogation if any out of
Maharashtra for that purpose. Thus
apprehension nursed by the petitioners of
taking them away out of Maharashtra is
inconsequential, it would not be for new
investigation.
27. The learned A.S.G. relied to the judgment
in the matter of RABABUDDIN SHEIKH VS STATE
OF GUJRAT (2010) 2 SCC 200, to paras 51 and
60, SURENDRANATH VS STATE OF RAJASTHAN 2006
Cr.L.J. 2716, J.PRABHAVATHIAMMA VS STATE OF
KERALA 2008 Cr.L.J. 45 (DB)KERALA HIGH COURT.
28. These judgments indicate that section 173
(8) Cr.P.C. does not restrict that further
investigation has to be by same investigating
agency.
24 CRWP NO.2136/2011
In the matter of K.CHANDRASHEKAR VS STATE
OF KERALA 1998 SCC (Criminal) 1291 to which
reliance was placed by Mr.Shevade, factual
matrix was all together different. In the
said case, Government of Kerala gave its
consent under section 6 of the Delhi Special
Police Establishment Act for investigation to
be carried by CBI. Consequently, CBI filed
its report under section 173 (2) of Cr.P.C.
However, the State Government was not happy
with such report exonerating the accused
therein. Thereafter, the Government of Kerala
by a fresh Notification withdrew the consent
earlier given to CBI so as to enable a re-
investigation of the case by a Officer.
In this context, the Honourable Supreme
Court in para 24 stated that any further
investigation could be made only by the CBI
for which it was entrusted to investigate into
the case by the State Government. The 25 CRWP NO.2136/2011
judgment of K.CHANDRASHEKAR has been discussed
by the Kerala High Court in 2008 Cr.L.J.45
also needs consideration and with respect, I
find the judgment in K.CHANDRASHEKAR would
not be available to be coined in favour of
the contentions canvassed by the petitioners.
29. A distinction was repeatedly canvassed by
Mr.Lalit between Unlawful Activities
(Prevention) Act, 1967 and NIA Act, as
according to him, both have come into play on
31.12.2008. The former is given retrospective
effect. However, in NIA Act specifically
there is no such reference. Though this is
factually correct. However, merely because a
statute authorize some action based on some
past conduct that would not take the Act from
retrospective effect. In STATE OF BOMBAY vs
VISHNU RAMCHANDRA AIR 1961 SC 307 at paras 11
and 12, the Hon'ble Supreme Court has observed
as under :
26 CRWP NO.2136/2011
11. In Taher Saifuddin vs Tyebhai Moosaji, AIR 1953 Bom. 183 at pp 186,187 the same principles were applied by Chagla C.J. And Bhagwati, J (as he then was) and reference was made also to the Queen vs Inhabitants of St.Mary White chapel (1848) 12 QB 120: 110 ER 811 where Lord Denman, C.J. In his judgment observed:
..It was said that the operation
of the statute was confined to persons who had become widows after the Act passed, and that the presumption against a retrospective statute being intended supported this construction; but we have before
shown that the statute is in its
direct operation prospective, as it relates to future removals, only and that it is not properly called are
prospective statute because a part of the requisites for its action is,
drawn from time antecedent to its
passing.
12. Now, S.57 of the Bombay Police Act, 1951 does not create a new offence nor makes punishable that which was not an offence. It is designed to protect the public from the activities of undesirable persons to have been convicted of offences of a particular kind. The section only enables the authorities to take note of their convictions and to put them outside the area of their activities so that the public may be protected against a repetition of such activities. As observed by Phillimore, J in Rex vs Austin 1913-1KB 551 at p.556.
No man has such a vested right in
27 CRWP NO.2136/2011
his past crimes and their consequences as would entitle him to insist that in no future legislation shall any regard whatever he had to his previous history.
An offender who has been punished
may be restrained to his acts and
conduct by some legislation, which
takes note of his antecedents but so long as the action taken against him is after the Act comes into force the statute cannot be said to be applied retrospectively. The Act in question was thus not applied retrospectively but prospectively.
30. NIA Act, as can be seen, is procedural in
nature and does not create new offence or
disabilities or obligations. Hence, even
assuming that NIA Act has not been given
retrospective operation, however, its user has
not created any new offence and it being not a
penal statute, element of retrospectivity is
permissible in law. The scheme under section
6 also clarifies the intention of Legislature.
31. Co-incidence of the date of enactment
by Parliament by UAP Act and NIA Act would not 28 CRWP NO.2136/2011
be of assistance in interpretation in using
the provisions of one statute with another.
The words and expression in another Act could
not afford to act or even some words or
expressions in another Act unless it is
specifically so provided or the statute are
with same subject matter or common object.
32. To repeat, UAP Act and NIA Act are not
dealing with common features where under or
cognate legislation. They certainly cover a
situation of different colour and complexion
and desires to achieve different object.
Consequently, retrospective applicability to
UAP Act would not dilute non-mention thereof
in the NIA Act. This answers clause (b) of
questions posed.
33. Learned counsel for the Petitioners
canvassed that section 21 (7) of MCOC Act
takes care to the terms pre-trial or pre-
indictment . They convey same meaning. As 29 CRWP NO.2136/2011
stated earlier, basically MCOC Act being a
special law will have a overriding effect to
section 167 Cr.P.C. Section 21 (7) of MCOC Act
reads as under :
The Police Officer seeking custody of any person for pre-indictment or pre-trial interrogation from the judicial custody shall file a written statement explaining the reasons for seeking such custody and also have to deal if any, in seeking the police custody.
34. The terms pre-indictment or pre-trial
"interrogation" have certainly different
meaning and they cannot be tried to be parts
of same term. There was no reason for the
legislation to have used identical terms if it
desired to give same meaning to different
terms. The term indictment refers to making
written accusations before the court charging
one or more persons with commission with one
or more offences. In the dictionary P.Ramnath
Iyer's Advanced Law Lexican 3rd Edition Volume
II page 2307 provides, "It may in some context
also refer to the issue of a formal charge 30 CRWP NO.2136/2011
before a grand jury stating that there is
enough evidence that the defendant has
committed the crime so as to justify the
matter proceeding to trial.
Thus, the enactment certainly connotes
to the stage of filing of charge sheet and
taking of cognizance of the matter. In the
instant case, cognizance was taken by order
dated 22.1.2009.
35. The term pre-trial by its connotations
would be certainly prior to trial. The term
trial has been explained. However, it will
be of no assistance to the petitioners.
36. In UNION OF INDIA VS.MAJOR GENERAL
MADANLAL YADAV 1996 (4)SCC 127 the Hon'ble
Supreme Court in context of the scheme of
Army Act and Rules held that it was when
Court-martial was constituted and at each
stage the court had to satisfy itself that it
was legally constituted as to charge already 31 CRWP NO.2136/2011
could be considered and read over to the
accused and opportunity given to the accused
to object to it. In this context,
observations of this Court, in the matter of
IQBAL HASSAN SHAIKH IBRAHIM KASKAR in para 21
and 22 are of importance:
21. Apart from the said provisions of section 21 (7) has also been added to the said provision. The said provision is already reproduced above. From the bare perusal of the said provisions it does appear that an additional power appears to have been given to the police to interrogate the accused in police custody, either before filing of the charge sheet or before framing of a charge.
22. From the perusal of the other similar Acts it will be seen that neither under the provisions of TADA nor under the provisions of POTA such a provision has been incorporated. In my view, therefore, the submission made by the learned A.P.P. That police custody of an accused can be sought even if the period of 30 days is not over either before filing of the charge sheet or before framing of a charge, has to be accepted. It is no doubt true that so far as the legal position in respect of section 167 is concerned, the Apex Court has taken a consistent view that the Legislature has imposed a restriction on the investigating agency and with that in mind, the police have been authorised to ask for custody in the first fifteen days only. However, from a perusal of section 21 (7) it appears that 32 CRWP NO.2136/2011
the Legislature has permitted the police to seek custody not only during the thirty days but even after the said period is over till the framing of charge. The said provision no doubt appears to be very draconian. However, since the validity of the said Act has been upheld, and provisions of section 21 (7) were not specifically challenged either in the present applications or before the Division Bench of this court, it will have to be held that if the period of 30 days of police custody is not over, then the police can seek custody of the accused either before filing of the charge sheet or before framing of charge. The wording of the section 21 (7) is very wide wherein it has been mentioned that this can be done either before pre-indictment or pre- trial interrogation from judicial custody. In the present case, the prosecution had filed an application on 2nd May 2003 and in that application reasons for the police custody was required to be mentioned. The special court has accepted the reasons which are given by the prosecution. Apart from the provisions of section 21, the provisions of section 25 are also relevant. Section 25 of MCOC in terms state that the provisions of this Act or any rule made thereunder or any order made under such rule shall have effect notwithstanding anything inconsistent therewith, contained in any other law. Thus provision of section 21 shall have an over-riding effect over the provisions of Cr.P.C. to the extent to which such an overriding effect has been prescribed by the said Act.
37. The effect of section 21 (7) of MCOC Act 33 CRWP NO.2136/2011
as stated above being emanating from a special
statute would have a overriding effect to
section 167 of Cr.P.C. This is more so
illustrated in section 25 of MCOC Act
providing an overriding effect. Thus, section
21 (7) of MCOC Act would have to be read
additionally to the provisions of section 167
of Cr.P.C. Section 167 has to be seen and
applied to a stage prior to completion of
investigation subject to further investigation
under section 173 (8) while section 21 (7) of
MCOC Act from the very definition continue to
apply even after investigation is completed
i.e. before framing of charge and recording
plea as pointed in IQBAL KASKAR's case.
38. The learned A.S.J. pointed, effect of
Article 254 of The Constitution of India also
needs to be considered.
39. MCOC Act was enacted by Maharashtra 34 CRWP NO.2136/2011
Legislative Assembly and received assent from
the President on 24.4.1999. Once such assent
was given to the provisions of MCOC Act it has
an overriding effect over any inconsistent or
repugnant provisions of Cr.P.C. Even in
Cr.P.C. is a law created by the Parliament.
Article 254 (2) of the The Constitution of India contemplates as under :
Where a law made by the a Legislature of a state with respect to one of the matters enumerated in the concurrent list contains any provision repugnant to the provisions of an earlier law made by Parliament or any existing law with respect to that matter then the law so made by the Legislature of such State shall if it has been reserved for the consideration of the President and has received his assent prevail in that State."
40. Section 4 (2) and section 5 of Cr.P.C.
itself will give overriding status and effect
to the provisions of MCOC Act which is a
special or local law. Section 4 (2) informs
that offences under any other law shall be
investigated, inquired into, tried and dealt 35 CRWP NO.2136/2011
with according to same provisions but, subject
to any enactment favour the time being in
force regulating the manner and place for
investigating, inquiring into the crime or
dealing with the stage of offence. Section 5
is saving clause, informs anything contained
in the code shall in the absence of specific
provisions to the contrary, effect any
special or local law for the time being in
force or any special jurisdiction or power
conferred or any special powers or procedure
prescribed by any other law for the time being
in force.
41. In UNION OF INDIA VS.RAMSARAN AIR 2004 SC
481 at paras 9 and 10 the Supreme Court held
that such special laws providing special
procedures must prevail and that no provisions
of the Criminal Procedure Code could apply as
they were general law applicable to all cases
generally.
36 CRWP NO.2136/2011
42. Effect of section 21 (2) of MCOC Act
takes away period of police custody envisaged
under section 167 of Cr.P.C. Taking these
aspects into consideration, I have no
hesitation to hold that section 21 (7) of MCOC
Act would have overriding effect over all the
provisions of Cr.P.C. by virtue of express
provisions in section 25 of MCOC Act and by
virtue of Article 254 (2) of The Constitution
of India. This answers point (a) referred
earlier.
43. The petitioners canvassed the judgment
in IQBAL KASKAR's case (2003 ALL MR (Cri)
1787) is per incuriam. However, in the light
of foregoing discussions, I do not agree to
such contentions as in IQBAL KASKAR's case it
is held that provisions of MCOC Act are
special statute and section 21 (7) of MCOC Act
is tried as a provision in addition to section 37 CRWP NO.2136/2011
167 of Cr.P.C.
Judgment in the matter of DAWOOD IBRAHIM
KASKAR could not be available to be stressed
to disturb the matter in the judgment of IQBAL
KASKAR as both are dealing with different
statutory situations. Section 309 of Cr.P.C.
operates in altogether different field. It
has nothing to do with police custody as
contemplated under section 167 of Cr.P.C. Or
under section 21 (7) of MCOC Act. It comes
into play when the court takes cognizance or
trial was being held in respect of a suspect.
44. Thus, survey of the entire discussion
illustrates :
(a) Section 21 (7) of MCOC Act has
overriding effect to section 167 of Cr.P.C. NIA Act permits new agency to take over pending investigation.
(b) NIA Act does not restrict the investigating agency to investigate or further investigate into the pending cases, it is retrospective in its application.
38 CRWP NO.2136/2011
(c) Effect of section 309 Cr.P.C. will not obliterate provisions of section 21 (7) of MCOC Act, a special statute.
45. The points raised by the Petitioners do
not sustain. Petition dismissed. Rule
discharged.
46. Operation of the order is stayed up to
21.12.2011.
K.U.CHANDIWAL, J
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