JAMIRUDDIN ANSARI v. CENTRAL BUREAU OF INVESTIGATION & ANR

Citation: [2009] 7 S.C.R. 759

Court: Supreme Court of India

Bench: ALTAMAS KABIR, CYRIAC JOSEPH

Case summary

JAMIRUDDIN ANSARI v. CENTRAL BUREAU OF INVESTIGATION & ANR.pdf

Judgment text

[2009] 7 S. C. R. 759 JAMIRUDDIN ANSARI v CENTRAL BUREAU OF INVESTIGATION & ANR. Criminal Appeal No. 958 of 2009 MAY 6, 2009 (ALTAMAS KABIR AND CYRIAC JOSEPH, JJ. ) ... Maharashtra Control of Organised Crime Act, 1999: .

Sections 9(1), 23(1), 25 - Special Court constituted ·under the Act - Whether could order investigation save and except in accordance with Section 23(1) and interplay, if any, qetween Sections 9(1) and Section 23- Held: Special Judge cannot take cognizance of any offence under the Act unless sanction has been previously given by the Police Officer - Provisions of Section 9(1) will have to be read in harmony with 0 the provisions of Section 23(2) as far as private complaints are concerned - Hence the majority view of the Full Bench of the Bombay High Court holding otherwise is negated - Its conclusions and directions are also set aside - Minority view approved since it correctly interprets the interplay between Sections 9, 23 and 25 of the Act- Code of Criminal Procedure, 1973 - Section 156(3).

In thes~ appeals against the judgment of the Full Bench of the Bombay High Court, the question that arose for consideration was as to whether an investigation could be ordered by the Special Court constituted under the Maharashtra Control of Organised Crime Act, 1999 (MCOCA), save and except in accordance with Section 23(1) of MCOCA, and interplay, if any, between Section 9(1) and Section 23 of MCOCA. ~ ~ Disposing of. the appeals, the Court- HELD: 1. Section 9 of MCOCA cannot be read or invoked independent of Section 23. Section 9(1) contemplates filing of complaints both by the investigating authorities and also by private parties and the Special Judge is, therefore, entitled to take cognizance of offences under MCOCA even on a private complaint, but after due compliance with Section 23(2) thereof. In view of the stringent provisions of MCOCA, the Legislature included certain safeguards for invoking the provisions thereof.

The same is manifest from the provisions of Section 23 as a whole. [Para 35] [779-F-H; 780-A] State of Orissa Vs. Ganesh Chandra Jew (2004) 8 SCC 40; K. Kalimuthu Vs. State by DSP (2005) 4 SCC 512; State . of Himachal Pradesh Vs. M. P Gupta (2004) 2 SCC 349; Sankaran Moitra Vs. Sadhna Oas and another (2006) 4 SC 584; N. K. Ogle Vs. Sanwaldas (1999) 3 SCC 284; Harpal Singh Vs. State of Punjab (2007) 13 SCALE 728; Rambhai Nathabhai Gadhvi and others Vs. State of Gujarat (1997) 4 SCC 744; Nelson Matis Vs. Union of India & Anr (1992) 4 SCC 711; Nazir Ahmad Vs. King Emperor AIR 1936 PC 253; UC Vs. Escorts Ltd. & Ors. (1986) 1 SCC 264; Mansukhlal Vs. State of Gujarat (1997) 7 SCC 622; State of Maharashtra & Ors. Vs. La/it Somdatta Nagpal & Anr (2007) 4 SCC 171; A. R. Antulay Vs. Ramdas Sriniwas Nayak & Anr (1984) 2 SCC 500 and Moti Lal Vs. CBI & Anr (2002) 4 SCC 713 - referred to. · 2.

The expression used in Section 9(1) rndicates that the Special Court may take cognizance of any offence without the accused being committed to it for trial, either on receiving a complaint of facts or upon a police report of su&h facts, which clearly indicates that the Special Court is also empowered to take cognizance of an offence under MCOCA even on a private complaint. The said l.. :i power vested in the Special Judge is, however, controlled by the provisions of Section 23(2) of the Act, which provides that no Special Court shall take cognizance of any offence under the Act without the previous sanction of Police Officer not below the rank of Additional Director . H Gener~I of Police. [Para 36] [780-E-G] · JAMIRUDDIN ANSARI V. 761 CENTRAL BUREAU OF INVESTIGATION & ANR . _, ~ 3.

The wording of Sub-Section (2) of Section 23 leaves no room for doubt that the Special Judge cannot take cognizance of any offence under MCOCA unless sanction has been previously given by the police officer. - and compliance with the provisions of Section 23 was not a pre-condition for the learned Special Judge to take cognizance of an offence under MCOCA. The learned Special Judge was directed to consider afresh the private complaint filed by Nitindra Singh. 10. It is against the said judgment and order of the Full Bench that these appeals have been filed. .. 11. Of the four appeals indicated hereinbefore, Criminal Appeal No. 1089 of 2006 filed by the State of Maharashtra was taken up first for consideration. On behalf of the State of Maharashtra it was emphasized that a special procedure had to be prescribed under MCOCA to deal with the rising graph of organized crime within the State of Maharashtra which could not be controlled under the existing laws.

It was pointed out that MCOCA made provisions for dealing with offences under the -1 observed that taking cognizance is the act which the Designated Court has to perform and granting sanction is an act which the sanctioning authority has to perform. In fact, taking of cognizance by the Court was subject to the grant of sanction not for the • Designated Court to take cognizance of an offence, but, for the prosecuting agency to approach the Court concerned to enable it to take cognizance of the offence and to proceed to trial against . the persons indicated in the report. In other words, a valid sanction is the sine qua non for enabling the prosecuting agency to approach the Court in order to enable it to take cognizance of the offence as disclosed. • 22. Appearing for Rasiklal Manikchand Dhariwal, Mr. R. F.

Nariman, learned Senior counsel, submitted that the provisions of MCOCA had to be read as a whole since it was the intention • of the legislature to minimise the application of the Code in respect of matters covered by MCOCA. He, however, disputed the submissions made both on behalf of the appellant as also the respondents that the Special Judge combined magisterial functions with that of the Court of Session. According to him, Section 9(1) of the Act merely eliminates the committal process - l> have to be read in a holistic manner and in the context of the Special Act to allow both of them to have play in the joints. 26. Gn behalf of the Respondent No. 2, Nitindra Singh, in -4 Criminal Appeal No. 1089 of 2006, Mr. Amit Sharma. learned counsel, submitted that the questions which were required to be decided in this case were mainly confined to the following two questions ~ (i) Does the Special Court have original jurisdiction of magisterial powers under MCOCA? ..

(ii) Whether Section 23 of MCOCA is a condition precedent for the Special Judge to invoke the • provisions of Section 9(1) of the said Act, both with regard to private complaints as well as police reports? In other words, the question is whether sanction is required to be taken under Section 23(2) before a private complaint could be filed under MCOCA? lo- 27. Answering the first question in the affirmative, Mr. 1, Sharma submitted that the Special Court combines in itself both magisterial functions as well as Session Court, but at different stages. He submitted that while at the stage of cognizance the Special Judge exercises magisterial powers. at the stage of trial he exercises all the powers of a Court of Session as provided under Section 9(4) of the Act. 28. Regarding the second question. Mr.

Sharma submitted that Section 23 of MCOCA governed Section 9(1) only with regard to police reports, but not in respect of private complaints and consequently the provisions of the Code would become operative in respect of a private complaint and Section 9(1) of MCOCA would, therefore, be independent of Section 23(2) when a private complaint was made. He also pointed out that Section 24 of MCOCA was an additional safeguard as it provides for .. punishment of a public servant who fails or abstains from taking .. lawful measures under the Act. 29. In support of his aforesaid submissions, Mr. Sharma, while referring to the decision in AR. Antulay's case (supra) referred to various other decisions of this Court which only have ~ repetitive value. Mr. Sharma submitted that the view taken by the Full Bench was correct and did not require any interference. 30. Mr. E. C. Agrawala, who appeared for Abdul Razzak Zariwala, a respondent in Criminal Appeal No.

1088 of 2006, adopted the submissions made by Mr. Amit Sharma. 31. Ms. Aishwarya Bhati, learned counsel appearing for . , the sole respondent, Ketan Pirodkar, in Criminal Appeal No. 1089 of 2006, who was also one of the complainants, while generally ·I agreeing with the submissions made by Mr. Lalit, Mr. Sushil ~ Kumar and Mr. Srivastava, contended that the provisions of Section 23 of MCOCA have to be given a harmonious construction in relation to Section 9(1) in order to avoid a collusion between the apparently contrary provisions. She urged that if sanction under Section 23(2) is held to be a sine qua non ,... for a private complaint, it would render Section 9(1) redundant "i and completely frustrate the remedy of a private complaint before the Special Court. She urged further that since a private ;. complaint could be filed directly under Section 9(1 ), the legislature intended that in such case the provisions of Section 23(2) will not be applicable.

However, if further investigation was required into such private complaint, the Special Judge could order such an investigation, subject to the safeguards provided in Section 23(1) of MCOCA. 32. Ms. Bhati then referred to Section 4 Cr. P. C. and submitted that all offences under the Indian Penal Code have to be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Criminal Procedure Code and all offences under any other law are to be dealt with according to the same provision, but subject to any enactment for the time being in force regulating the place of investigation and trial. In this regard, Ms. Bhati referred to the decisions of ... ~ this Court in Moti Lal Vs. CBI & Anr. [(2002) 4 SCC 713], where the question involved was whether the CBI was authorized to investigate an offence punishable under the Wild Life (Protection) Act, 1972, in view of the argument that the said enactment was _.. a self-contained Code.

Answering the said question, this Court held that the provisions of the Criminal Procedure Code would apply in respect of investigation and trial even in respect of such t enactments, but would b~ subject to any provision regulating the manner of such investigation and trial. Ms. Bhati urged that consequently, the provisions of the Cr. P. C. would apply with full force in all aspects of investigation, enquiry and trial, except where there is a specific provision to the contrary in the Special • Act, such as MCOCA. + 33. Ms. Bhati submitted that if sanction under Section 23(2) was held to be a sine qua non for private complaint also, the object of Section 9 would be completely frustrated and would lead to startling results and that complaint of a private party would become the subject of police investigation. 34. Mr.

Harish Salve, learned senior counsel, appearing for the Union of India, added a new dimension to the submissions ~ made on behalf of the respective parties by contending that, in fact, no private complaint would lie under Section 9(1) of MCOCA and that such private complaints will have to be made under Section 190 Cr. P. C. He urged that since Section 9(1) was subject to compliance with the provisions of Section 23(2), the said provisions did not contemplate the filing of a private complaint and the provisions of Section 190(1 )(c) Cr. P. C. stood excluded. - ... 35. We have carefully considered the submissions made on behalf of the respective parties_... and we are' convinced that Section 9 of MCOCA cannot be read or invoked independent of Section 23. In our view, Section 9(1) contemplates filing of complaints both by the investigating authorities and also by private parties and the learned Special Judge is, therefore, entitled to take cognizance of offences under MCOCA even on ,_,.

.. , a private complaint, but after due compliance with Section 23(2) thereof. In view of the stringent provisions of MCOCA, the Legislature included certain safeguards for invoking the provisions thereof. The same is manifest from the provisions of ... Section 23 as a whole. In order to understand and appreciate the provisions of Sections 9 and 23 and the inter-play between them, Sub-Sections (1) and (4) of Section 9, which are relevant to the submissions made in these appeals, are reproduced hereinbelow :- "9. Procedure and powers of Special Court :- (1) A Special Court may take congnizance of any offence without the accused being committed to it for trial upon receiving a complaint of facts which constitute such offence or upon a police report of such facts.

(2) xxx xxx xxx (3) xxx xxx xxx (4) Subject to other provisions of this Act, a Special Court shall, for the purpose of trial of any offence, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session, so far as may be, in accordance with the procedure prescribed in the Code for the trial before a Court of Session. " 36. The expression used in Section 9(1) indicates that the Special Court may take cognizance of any offence without the accused being committed to it for trial, either on receiving a complaint of facts or upon a police report of such facts, which clearly indicates that the Special Court is also empowered to take cognizance of an offence under MCOCA even on a private complaint.

The said power vested in the learned Special Judge is, however, controlled by the provisions of Section 23(2) of the Act, which provides that no Special Court shall take cognizance of any offence under the Act without the previous sanction of a Police Officer not below the rank of Additional Director General of Police. 37. For the sake of reference, the provisions of Section 23 are extracted hereinbelow. "23. Cognizance of, and investigation into, an ' ' offence. - (1) Notwithstanding anything contained in the Code,- (a) ·no information about the commission of an offence of organised crime under this Act, 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; , (b) no investigation of an offence under the provisions of this Act shall be carried out by a police officer below the rarik of the Deputy Superintendent of Police.

(2) No Special Court shall take cognizance of any offence under this Act without the precious.. sanction of the police officer not below the rank of Additional Director General of Police. " 38. The wording of Sub-Section ,(2) of Section 23 leaves no room for doubt that the learned Special Judge cannot take cognizance of any offence under MCOCA unless sanction has been previously given by the police officer mentioned hereinabove. In such a situation, even as far as a private complaint is concerned, sanction has to be obtained from the Police Officer not below the rank ofAdditional Director General • of Police, before the Special Judge . can take cognizance of such complaint. Accordingly, the provisions of Section. 9(1) will have to be read in harmony with the provisions of Section 23(2) as ·. far as private complaints are concerned, and we have no hesitation in negating the majority view of the Full Bench holding otherwise. 39.

We are also inclined to hold that in view of the provisions of Section 25 of MCOCA, the provisions of the said Act would have an overriding effect over the provisions of the Criminal Procedure Code and the learned Special Judge would not, therefore, be entitled to invoke the provisions of Section 156(3) Cr. P. C. for ordering a ,special inquiry on a p_rivate '- ... complaint and taking ~ognizance thereupon, without trave~sing -,. the route indicated in Section 23 of MCOCA. In other words, even on a private complaint about the commission of an offence ~ of organized crime under MCOCA cognizance cannot be taken by the Special Judge without due compliance with Sub-Section (1) of Section 23, which starts with a non-obstante clause. As indicated hereinabove, the provisions of Section 23 are the safeguards provided against the invocation of the provisions of f the Act which are extremely stringent and far removed from the • provisions of the general criminal law.

If, as submitted on behalf of some of the respondents, it is accepted that a private ~ · complaint under Section 9(1) is not subject to the rigours of Section 23, then the very purpose of introducing such safeguards lose their very raison d'etre. At the same time, since the filing of .. ' a private complaint is also contemplated under Section 9(1) of MCOCA, for it to be entertained it has also to be subject to the ~ rigours qf Section 23. 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.

ln 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 inquiry conducted into the complaint 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. ~n 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. ~ 42. We, therefore, allow Criminal Appeal No. 1089 of 2006 filed by the State of Maharashtra and set aside the majority· decision of the Full Bench in the judgment impugned, together with the directions issued thereupon.

Instead, we endorse the· minority view of the acting Chief Justice and accept the conclusions arrived at by His Lordship and the directions given thereupon. • 43. As far as the appeal preferred by Jamiruddi. n Ansari is concerned, the trial has not progressed on account of the stay ~ orders passed by this Court on the appeals filed by the State of Maharashtra against the decision of the Full Bench on the reference made on the conflicting views expressed by different Benches of the High Court with regard to the interpretations of Sections 9 and 23 of MCOCA. Except for the fact that the appellant had undergone a further period in custody, the only change in the circumstances is that he was granted bail by this .. court on 19/12/2008. We, therefore, see no reason to entertain the appeal filed by him and the same is dismissed. 44. Criminal Appeal No. 1085 of 2006 filed by Ashok son of Gyanchand Vohra and Criminal Appeal No.

1088 of 2006 filed by Shabbir Noormohamed Patel will also stand disposed of . along with the appeals filed by the State of Maharashtra in the same vein. 45. The appeals filed by the State of Maharashtra in J respect of the writ petitions filed by Shri Rasiklal Manikchand Dhariwal and J. M. Joshi are delinked from the other appeals and disposed of with a direction to the High Court to dispose of their writ petitions expeditiously. Let the lower court records in respect oftheir matters be sent back to the High Court forthwith. GN. Appeals disposed of. . ~ + ' ~/