Research › Search › Judgment

Bombay High Court · body

2013 DIGILAW 1218 (BOM)

Niyaz Ahmad Hafzul Kabir v. State of Maharashtra

2013-07-03

P.D.KODE

body2013
JUDGMENT 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 complainant. 4. Mr. Zia Quazi, learned counsel for the applicant, firstly drew 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 : [2006 ALL MR (Cri) 740), 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. 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 remedy-less 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. 51. ….. 52. 51. ….. 52. To sum up I restate my conclusions : (i) a complaint as contemplated by section 2(d) of 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 appropriate action under section 23(1) (iii) 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." 5. Learned counsel for the applicant further contended that 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 : [2009 ALL MR (Cri) 2790 (S.C.)]. He further submitted that the apex Court in the said decision observed in paragraph nos. 40 and 41 to the effect that : "40. Central Bureau of Investigation & Anr.; reported in AIR 2009 Supreme Court 2781 : [2009 ALL MR (Cri) 2790 (S.C.)]. He further submitted that the apex Court in the said decision observed in paragraph nos. 40 and 41 to the effect that : "40. Accordingly, in view of the bar imposed under sub-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 sub-section (1) of Section 23 to have an enquiry conducted into the compliant by a police officer indicated in clause (b) of sub-section (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 sub-section (2) of Section 23. 41. In substance, we agree with the minority view of the Full Bench, which, in our opinion, correctly interprets the interplay between Sections 9, 23 and 25 of MCOCA" 6. 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, [2009 ALL MR (Cri) 2790 (S.C.)] (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. 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., [2006 ALL MR (Cri) 740] (supra) by Full Bench of this Court so also of the apex Court in Jamiruddin Ansari, [2009 ALL MR (Cri) 2790 (S.C.)] (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, [2009 ALL MR (Cri) 2790 (S.C.)] (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 case of Jamiruddin Ansari, [2009 ALL MR (Cri) 2790 (S.C.)] (supra). 9. 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 : [2009 ALL MR (Cri) 2790 (S.C.)]. 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. Ordered accordingly.