In order to give
a harmonious construction to the provisions of Section 9(1) and
Section 23 of MCOCA, upon receipt of such private complaint
the learned Special Judge has to forward the same to the officer
indicated in clause (a) of subsection (1) of Section 23 to have
an enquiry conducted into the compliant by a police officer
indicated in clause (b) of subsection (1) and only thereafter
take cognizance of the offence complained of, if sanction is
accorded to the Special Court to take cognizance of such offence
under subsection (2) of Section 23.
Niyaz Ahmad Hafzul Kabir,
...V E R S U S...1
state of Maharashtra
Criminal Application (APL) No. 456/2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CORAM: P. D. KODE, J.
DATED : JULY 3, 2013
Rule. Rule returnable forthwith. Heard finally by consent of
the parties.
2.
By this application under Section 482 of the Code of Criminal
Procedure, the applicant had challenged the order dated 09.07.2012
passed by the learned Special Judge, MCOCA Court, Nagpur ordering
putting up the proceeding for verification of the complainant.
3.
The applicant has filed the said complaint under section 9(1)
of the Maharashtra Control of Organized Crime Act, 1999 (Hereinafter
referred to as the “MCOC Act”), before the said Court constituted under
section 5 of the MCOC Act. After presenting the said complaint, the
complainant had prayed for forwarding the said complaint to the
competent officer for the investigation in accordance with the provisions
of the MCOC Act. It appears that thereafter the complainant having not
appeared, the order impugned in the present application was passed
putting up the said case for recording verification statement of the
Mr. Zia Quazi, learned counsel for the applicant, firstly drew
4.
complainant.
my attention to paragraph Nos. 50 and 52 of the Full Bench decision of
this Court in Ashok Gyanchand Vohra and ors..vs..State of
Maharashtra and anr.; reported in 2006 (3) Mh.L.J.164, which read
as under:
“50. Taking into consideration all these aspects I am of the
opinion that the question referred to us will have to be answered
in negative that is to say:
“Q.
Whether in a private complaint filed under the provisions
of section 9(1) of the Maharashtra Control of Organized Crime
Act, 1999 designated Court is empowered to order investigation
under section 156 (3) of the Code of Criminal Procedure before
approval/sanction is granted to investigate and take cognizance
as contemplated under section 23 of the said Act?
A.
A designated Court under the MCOC Act does not have the
power to direct investigation under section 156 (3) of the
Criminal Procedure Code in view of the provisions of sections 9
and 23 of the MCOC Act.”
This answer by me to this question referred to above therefore
necessarily creates another question as to what would happen
when a complaint of offence as prescribed under the Act is made
in writing or orally to the designated Court directly. This aspect
was emphasized by several learned advocates appearing before
us. The fear was expressed that in such a situation the private
complainant would be remedyless and will have to tolerate
atrocities of the authorities concerned under the Act without a
Forum where he can complain about it. In my opinion, all such
fears are baseless. I have already pointed out above that a
complaint can be made to a designated Court of any offence as
defined in that Act being committed by any person. In the event
of such complaint being made to a designated Court all that is
required of the learned Judge to do is to transmit that complaint
to the Deputy Inspector General of Police of the area concerned
for being dealt with in accordance with law. On such receipt of
the complaint the Deputy Inspector General of Police would issue
his necessary prior approval to the concerned police officer for
recording information about the commission of offence of the
crime under the Act. That police officer if he himself is of the
rank of Deputy Superintendence of Police or above him carry out
investigation himself, or may direct another officer not below the
rank of Deputy Superintendent of Police to carry out
investigation. On completion of investigation the police officer
who is designated officer will file the report before the Additional
Director General of Police who thereafter would consider the
report and may grant sanction under section 23(2) to take
cognizance which then would be transmitted to the Special Court
designated under the Act and whereupon the Court shall take
cognizance of the complaint of fact as originated by the
complaint initially filed before it.
.....
52. To sum up I restate my conclusions:
(i) a complaint as contemplated by section 2(d) of
51.
Criminal Procedure Code that can be filed by any individual
before Special Court designated under the Act;
(ii)
on receipt of such complaint the learned Special Court
would transmit the same to the Deputy Inspector General of
Police of the range from which the complaint emanates for
(iii)
appropriate action under section 23(1)
The Deputy Inspector General of Police to whom such
complaint is forwarded will then apply his mind and grant
approval to appropriate officer mentioned in section 23(1) (a) to
record information about commission of offence as it emanates
from the complaint and then order investigation by an officer not
below the rank of Deputy Superintendent of Police as
contemplated by section 23(1) (b);
(iv)
on completion of investigation the report shall be
placed before the Additional Director General of Police for
consideration of the question regarding grant of sanction to take
cognizance, who on application of his mind to the report and the
facts as disclosed thereby will grant or refuse as the case may be
previous sanction to take cognizance of the matter under section
9 (1) of the Act;
(v)
it is on receipt of such police report accompanied by
sanction under section 23(2) that the Court will take cognizance
under section 9(1). From the above it will be seen that that
being the procedure prescribed under the Act section 9(1) says
that a Special Court may take cognizance. To illustrate a Special
Court cannot take cognizance if the report placed before it is not
accompanied by a sanction.”
Learned counsel for the applicant further contended that
5.
majority as well as minority view expressed in the aforesaid Full Bench
decision regarding the procedure to be followed after a private complaint
is filed to a Special Court designated under the MCOC Act for the
offences under the MCOC Act was considered by the apex Court in the
decision in the case of Jamiruddin Ansari ..vs.. Central Bureau of
Investigation & Anr.; reported in AIR 2009 Supreme Court 2781. He
further submitted that the apex Court in the said decision observed in
paragraph nos. 40 and 41 to the effect that:
Accordingly, in view of the bar imposed under sub
“40.
section (2) of Section 23 of the Act, the learned Special Judge is
precluded from taking cognizance on a private complaint upon a
separate inquiry under Section 156 (3), Cr.P.C. The bar of
Section 23(2) continues to remain in respect of complaints,
either of a private nature or on a police report. In order to give
a harmonious construction to the provisions of Section 9(1) and
Section 23 of MCOCA, upon receipt of such private complaint
the learned Special Judge has to forward the same to the officer
indicated in clause (a) of subsection (1) of Section 23 to have
an enquiry conducted into the compliant by a police officer
indicated in clause (b) of subsection (1) and only thereafter
take cognizance of the offence complained of, if sanction is
accorded to the Special Court to take cognizance of such offence
under subsection (2) of Section 23.
In substance, we agree with the minority view of the
Full Bench, which, in our opinion, correctly interprets the inter
6.
play between Sections 9, 23 and 25 of MCOCA”
He contended that the observations in the said paragraphs
are self eloquent to indicate that in a private complaint for an offence
under the MCOC Act being presented before the Judge presiding over the
said Court, it is incumbent upon the Court to refer the complaint to the
competent officer for investigation. He submitted that hence ordering
placing of such a complaint for verification statement of the complainant
would be contrary to the law laid down by the apex Court by aforesaid
decision. He, then prayed for quashing and setting aside the said order
and ordering the learned Special Judge of the MCOCA Court for
following the procedure laid down by the apex Court in paragraph 40 in
the case of Jamiruddin Ansari (supra).
7.
Mr. Patel, learned A.P.P. for the State, after considering the
judgment pointed out by the learned counsel for the applicant, requested
for passing an appropriate order in the matter.
8.
Perusal of the judgments in the case of Ashok Gyanchand
Vohra and ors.(supra) by Full Bench of this Court so also of the apex
Court in Jamiruddin Ansari (supra), particularly paragraphs 40 and 41
to which the attention was drawn, reveals that they fully support the
submissions of the learned counsel for the applicant. The apex Court
having approved the minority view expressed in the decision in the case
of Jamiruddin Ansari (supra), the order passed by the learned Special
Judge, MCOCA Court, Nagpur placing the complaint for recording
verification statement of the complainant cannot be said to be in
consonance with the procedure contemplated under the MCOC Act for
such a private complaint. Hence, the said order passed cannot be legally
sustained and the same is liable to be quashed and set aside and the
learned Special Judge, MCOCA Court will be required to be directed to
follow the procedure preferred by the apex Court in the decision in the
9.
case of Jamiruddin Ansari (supra).
Resultantly, order dated 09.07.2012 passed by learned
Special Judge, MCOCA Court, Nagpur in Misc. Criminal Application No.
1276/2012 is quashed and set aside with a direction to the learned
Special Judge to follow the procedure indicated in paragraph no. 40 of
the decision in the case of Jamiruddin Ansari..vs..Central Bureau of
Investigation & Anr.; reported in AIR 2009 Supreme Court 2781.
Rule made absolute. No order as to costs.
Criminal Application No. 771/2012
In view of disposal of Criminal Application No. 456/2012, this
application does not survive. The same is, therefore, disposed of
accordingly.
JUDGE
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