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2009(4) Supreme 754
SUPREME COURT OF INDIA
Supreme Court of India
(From Bombay High Court)
Altamas Kabir and Cyriac Joseph, JJ.
Jamiruddin Ansari — Appellant
versus
Central Bureau of Investigation & Anr. — Respondents
Criminal Appeal No. of 2009
(Arising out of S.L.P.(Crl.)No.5677 of 2007)
WITH
Criminal Appeal Nos.1085, 1088 & 1089 of 2006
Decided on : 06-05-2009
(2004) 8 SCC 40; (2005) 4 SCC 512; (2004) 2 SCC 349; (2006) 4 SC 584; (1999) 3 SCC 284 – Relied upon.
(b) Maharashtra Control of Organized Crime Act, 1999 – Sections 9 and 23 –Both these provisions are to be construed harmoniously. (Para 22)
(1992) 4 SCC 711 – Relied upon.
(c) Administration of Justice – When a power had been given to do a certain thing in a certain way, it would have to be done in that way only. (Para 23)
AIR 1936 PC 253; (1986) 1 SCC 264; (1997) 7 SCC 622 – Relied upon.
(d) Maharashtra Control of Organized Crime Act, 1999 – Sections 9 and 23 – Section 9 cannot be read or invoked independent of section 23 – Special Judge is entitled to take cognizance of offences even on private complaints – However this would be done only after due compliance with section 23(2). (Para 35)
(2007) 13 SCALE 728; (1997) 4 SCC 744 – Impliedly Relied upon.
(e) Maharashtra Control of Organized Crime Act, 1999 – Section 25 – Provisions of the Act would have an overriding effect on the provisions of Code of Criminal Procedure, 1973 – The Special Judge would, therefore, not be entitled to invoke provisions of section 156(3), Cr. P.C. (Para 39)
Facts of the case :
1. On 5th September, 2003, one Himmat Nanda was alleged to have been caught red-handed accepting a bribe of Rs.3 lakhs, for and on behalf of one Nitindra Singh, in a trap set up by the Anti-Corruption Bureau, Mumbai.
2. It was alleged that the said Himmat Nanda was, in fact, the conduit for the said respondent, Nitindra Singh.
3. On 19th August, 2004, Nitindra Singh, who was an Assistant Police Inspector, filed a private complaint against 14 accused, 8 of whom were senior police and government officials and members of the Anti-Corruption Bureau and some other government officials who were members of the raiding party in the above-mentioned trap case.
4. The Special Judge passed directed the Commissioner of Police, Mumbai, to form a Special Investigation Team to raid the premises of all the accused named in the complaint filed by the said Nitindra Singh.
5. This order was challenged by way of writ pwtitions on behalf of the State and others on 2nd September 2004, praying for quashing of the order dated 24th August, 2004, passed by the learned Special Judge ordering the formation of a SIT to raid the premises of all the accused named in the complaint; the order dated 26th August, 2004, directing urgent investigation and the order dated 30th August, 2004, appointing the writ petitioner to head the SIT.
5. On 21st December, 2004 in another case, a Division Bench of the Bombay High Court held that a private complaint under Section 9 of MCOCA could not be entertained without compliance with Section 23 of the said Act.
6. However, on the very next date, another Division Bench of the Bombay High Court, held that while entertaining a private complaint under Section 9 of MCOCA, the Special Court could take recourse to the provisions of Section 156(3) Cr.P.C. and order investigation of such private complaint.
7. On 22nd December, 2005, the Full Bench of the High Court gave a split verdict with the majority view being that a private complaint filed under Section 9 of MCOCA was independent of Section 23 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.
8. It is against the said judgment and order of the Full Bench that these appeals have been filed.
Finding of the Court :
Minority view of the Full Bench correctly interprets the inter-play between Sections 9, 23 and 25 of MCOCA.
Result : Criminal Appeal No.1089 of 2006 allowed.
Certainly. Based on the provided legal document, here are the key points:
Sections 9 and 23 of the Maharashtra Control of Organized Crime Act, 1999 (MCOCA) must be construed harmoniously, with particular emphasis on the safeguards intended by Section 23 (!) (!) .
The Special Court under MCOCA has the authority to take cognizance of offences on private complaints, but only after compliance with the procedural safeguards outlined in Section 23(2), which requires prior sanction from a police officer of a specified rank (!) (!) .
The provisions of Section 9(1) of MCOCA are not independent of Section 23; instead, they are interconnected, and the latter imposes a mandatory condition for cognizance, especially in private complaints (!) (!) .
The legislative intent behind the safeguards in Section 23 is to prevent misuse of the stringent provisions of MCOCA, acting as a check against mala fide private complaints (!) (!) .
The Act’s provisions, including Sections 9 and 23, are to be read as a whole, with Section 25 providing the Act with overriding effect over other laws, thus restricting the use of certain procedural powers such as ordering investigations under Section 156(3) Cr.P.C. without prior sanction (!) (!) .
The interpretation that Section 9 can be invoked independently of Section 23 is incorrect; instead, prior approval or sanction under Section 23(2) is a precondition for the Special Court to take cognizance of offences on private complaints (!) (!) .
The procedural safeguards and the requirement for prior sanction are fundamental to ensuring that the provisions of MCOCA are not misused, and they serve as a necessary check on the powers of the Special Court (!) (!) .
The appeals and cases discussed highlight the importance of adhering to the procedural safeguards and the legislative intent behind the provisions, ensuring that investigations and cognizance are taken in accordance with the prescribed legal framework (!) (!) .
Please let me know if you need further clarification or assistance with specific legal questions related to this document.
JUDGMENT
Altamas Kabir, J.—
1. Leave granted in SLP(Crl.)No. 5677/2007.
2. Criminal Appeal Nos.1085, 1088 and 1089 of 2006 have been taken up for final disposal along with SLP(Crl.)No.5677 of 2007, inasmuch as, they arise out of the same set of facts and common questions of law are involved. SLP(Crl.)No.5677 of 2007 has been filed by Jamiruddin Ansari, challenging the order passed by the Bombay High Court on 16th April, 2007, rejecting his prayer for bail, although, he is in custody since his arrest on 10th October, 2004, without trial. Criminal Appeal No.1085/06 has been filed by Ashok, son of Gyanchand Vohra, against the judgment of the Bombay High Court in Criminal Writ Petition No.127 of 2005, which had been heard by a Bench of three Judges on a reference being made to resolve two conflicting views which had been taken by two Division Benches of the Bombay High Court relating to the interpretation of Section 9(1) vis-‘-vis Section 23 of the Maharashtra Control of Organized Crime Act, 1999 (hereinafter referred to as ‘MCOCA’). Criminal Appeal No.1088 of 2006 has been filed by one Shabbir Noormohamed Patel, raising the same questions as those raised in Criminal Appeal No.1085/06. Criminal Appeal No.1089 of 2006 has been filed by the State of Maharashtra, challenging the judgment of the Bombay High Court dated 22nd December, 2005, on the question as to whether the Special Court could take cognizance of an offence on a private complaint under Section 9(1) of MCOCA and order investigation in respect thereof under Section 156(3) of the Code of Criminal Procedure (Cr.P.C.).
3. The common thread running through these appeals is the question as to whether an investigation could be ordered by the Special Court constituted under 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. In order to understand the context in which these questions have arisen, it is necessary to briefly set out the facts of the case.
4. On 5th September, 2003, one Himmat Nanda was alleged to have been caught red-handed accepting a bribe of Rs.3 lakhs, for and on behalf of one Nitindra Singh, in a trap set up by the Anti-Corruption Bureau, Mumbai. Pursuant to his arrest, an offence was registered by the Anti-Corruption Bureau, Mumbai, under Sections 7, 8, 9, 12, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988, being C.R. No.3071 of 2003, against the said Nitindra Singh and several others. It was alleged that the said Himmat Nanda was, in fact, the conduit for the said respondent, Nitindra Singh.
5. On 19th August, 2004, Nitindra Singh, who was an Assistant Police Inspector, filed a private complaint, being Special Case No.243 of 2004, under the penal sections of MCOCA before the Special Judge, MCOCA Court, Mumbai, against 14 accused, 8 of whom were senior police and government officials and members of the Anti-Corruption Bureau and some other government officials who were members of the raiding party in the above-mentioned trap case. After recording the statements of six witnesses on 21st August, 2004, the learned Special Judge passed an order under Section 202 Cr.P.C. directing the Commissioner of Police, Mumbai, to form a Special Investigation Team (hereinafter referred to as ‘SIT’) to raid the premises of all the accused named in the complaint filed by the said Nitindra Singh, who were none other than the complainants against Nitindra Singh and witnesses of the trap case along with all police officers of the Anti-Corruption Bureau, who had conducted the raid in the trap case. On 30th August, 2004, the Special Judge, MCOCA Court, appointed Smt. Meera Borvankar, Joint Commissioner of Police (Crime), Mumbai, to head the SIT. On 2nd September, 2004, acting on the instructions of the State of Maharashtra, Smt. Meera Borvankar filed Criminal Writ Petition No.1772 of 2004 before the Bombay High Court on behalf of the State Government, praying for quashing of the order d
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