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IN THE HIGH COURT OF BOMBAY
Desai Ranjana (Smt.) Oka A.S., JJ.
State of Maharashtra .... Petitioner.
Versus
Nitendrasingh @ Nitin Kumarsingh Patil.... Respondent.
Criminal Writ Petition No. 1772 of 2004, decided on 24-11/22-12-2004.
Advocates appeared :
V.A. Thorat with B.R. Patil, A.P.P., Ms. P.H. Kantharia, A.P.P. Ms. U.V. Kejriwal, A.P.P., for petitioner/State.
Ms. Asmita Sarangdhar, for respondent.
Criminal Procedure Code, 1973 - Section 190 - Cognizance of offence - Meaning - Private complaint under MCOCA - Special Judge recording verification of complainant and evidence witnesses directed Joint Commissioner to submit report - Challenged - Whether process taken amounts to taking of cognizance. - Held, by recording verification of complainant and recording the evidence and by proceeding under Section 202 of Code after application of mind to complaint, the Special Judge has taken cognizance of offence. 1977 (4) SCC 459; AIR 1964 SC 1541; 1995 (1) SCC 684; 2001 (2) SCC 628; AIR 1961 SC 986 - Referred to.
Criminal Procedure Code, 1973 - Sections 190 and 193 - Private complaint under MCOCA - Maintainability. - Held, under Section 9(1) of MCOCA Special Court can entertain such a complaint. 2004 (1) Bom CR (Cri) 700 agreed on point. 1984 (1) Bom CR 345 (SC) - Referred to.
Criminal Procedure Code, 1973 - Sections 190, 200, 201, 202, 203 and 204, Chapter XV - Cognizance of offence - Sanction - Whether sine quo non for taking cognizance - Powers of Special Courts - Private complaint under Sections 3(4), (5), 4 and 24 of MCOCA and Sections 120-B, 143, 147 etc. of Indian Penal Code against Police Officers and other Government Officers - Special Court recording complainants verification and evidence appointed, Jt. Commissioner to investigate and submit report - Order challenged by State - Contention, Special Court has no precognizance powers sanction is sine quo non of taking cognizance - Contra, no procedure laid down in MCOCA will have to follow powers prescribed under Code. - Held, sanction under Section 23(2) of MCOCA is sine quo non for taking cognizance of private complaint. Special Court cannot take steps under Chapter XV of Code unless sanction obtained. Prior to sanction it can resort to Section 156(3) of Code. Matter remanded to Special Court and order set-aside. 1977(7) SCC 744; 2004 (2) SCC 349; AIR 1976 SC 1947; 1997 Cri LJ 2491; 2000(5) Bom CR (SC) 265; 1984 (1) Bom CR 345(SC) ; 1977 (4) SCC 459; AIR 1964 SC 1541; 1995 (1) SCC 684; 2001 (2) SCC 628; AIR 1961 SC 986; 1980 (1) SCC 554; 1992 SCC (Cri) 426; 2001 SCC (Cri) 1280; 1998 (2) SCC 109; 2004 (1) Bom CR (Cri) 700, not conserted on point that after entertaining complaint directly under Section 9(1) Special Court can follow procedure under Chapter XV of Code in absence of sanction.
Criminal Procedure Code, 1973 - Sections 225 and 237 - Procedure and powers of Special Court - Trial of offences. - Under Section 9(4) of MCOCA, the Special Courts have all powers of Court of Sessions, in accordance with the procedure prescribed in Code for trial before a Court of Sessions. MCOCA does not provide precognizance powers of Special Judge.
Maharashtra Control of Organised Crimes Act, 1999 - Section 9 - Powers of Court - Direction by Court to carry out investigation by particular officer - Private complaint under provisions of MCOCA - Special Court after recording verification of complainant and evidence of witnesses directed, Jt. Commissioner of Police to investigate and submit report - Challenged - Contention by State Special Judge could not have directed investigation to be carried out by any particular Police Officer. - Held, Special Judge had no jurisdiction, direct that a particular Police Officer or even a particular rank of Police officer should conduct investigation. The Special Judge should not have directed a particular officer to carry out the investigation. 2001 SCC (Cri) 1280 - Relied on; 1980 (1) SCC 554; AIR 1945 PC 18; 1992 SCC (Cri) 426 - Referred to.
Maharashtra Control of Organised Crimes Act, 1999 - Section 9 - Cognizance of of fence - Meaning thereof - Private complaint under provisions of MCOCA - Special Judge recording verification of complainant and evidence of six witnesses subsequently directed Joint Commissioner of Police to submit report - Challenged - Point whether it amounts to taking of cognizance. - Held, by recording verification of complainant and by recording the evidence of witnesses and by proceeding under Section 202 of Code after application of mind to complaint, the Special Judge has taken cognizance of offence. Decision proper. 1977 (4) SCC 459; AIR 1964 SC 1541; 1995 (1) SCC 684; 2001 (2) SCC 628; AIR 1961 SC 986 - Referred to.
Maharashtra Control of Organised Crimes Act, 1999 - Sections 9 and 23(2) - Cognizance of offence - Sanction - Whether it is sine qua non for taking cognizance - Jurisdiction of Special Courts - Private complaint under Sections 3(4), (5), 4 and 24 of Act and Sections 120-B, 143, 147 etc. of IPC against Police Officers and other Government Officers - Special Court recording complainants verification and evidence of six witnesses accordingly appointed, Jt. Commissioner of Police to investigate and submit report - Order challenged by State - Contention, Special Court has no powers of pre-cognizance and sanction is sine quo non of taking cognizance - Contra, no such procedure laid down in MCOCA and will have to follow powers prescribed under Cr PC. - Held, sanction under Section 23(2) of MCOCA is sine quo non for taking cognizance of private complaint. Special Court has no jurisdiction to take steps under Chapter XV of Code unless sanction is obtained. However prior to sanction it can take resort to Section 156(3) of Code. Matter remanded to Special Court and order quashed. 1977 (7) SCC 744; 2004 (2) SCC 349; AIR 1976 SC 1947; 1997 Cri LJ 2491; 2000 (5) Bom CR (SC) 265; 1984 (1) Bom CR 345 (SC); 1977 (4) SCC 459; AIR 1964 SC 1541; 1995 (1) SCC 684; 2001 (2) SCC 628; AIR 1961 SC 986; 1980 (1) SCC 554; 1992 SCC (Cri) 426; 2001 SCC (Cri) 1280; 1998 (2) SCC 109; 2004 (1) Bom CR (Cri) 700, not agreed on point that after entertaining complaint directly under Section 9(1) Special Court can follow procedure under Chapter XV of Code in absence of sanction.
Maharashtra Control of Organised Crimes Act, 1999 - Section 9(1) - Private complaint - Maintainability of. - Held, under Section 9(1) of Act Special Court can validity entertain a private complaint. 2004 (1) Bom CR (Cri) 700, agreed on point. 1984 (1) Bom CR 345 (SC) - Referred to.
Maharashtra Control of Organised Crimes Act, 1999 - Section 9(4) - Procedure and powers of special Court - Trial of offences by. - Held, according to Section 9(4) of MCOCA, for purpose of trial, the special Court shall have all powers of Court of Sessions as far as may be, as per the procedure prescribed in Code for trial before a Court of Sessions. MCOCA does not provide for pre-cognizance powers of Special Judge.
2. Since this petition arises out of the private complaint filed by the complainant, the gist of the allegations contained therein will have to be shortly stated. The complainant filed the said private complaint in the M.C.O.C.A. Court at Bombay under sections 3(2), 3(3), 3(4), 3(5), 4 and 24 of the M.C.O.C.A. and under sections 120-B, 143, 147, 149, 166, 182, 191, 192, 193, 195, 196, 218, 323, read with section 34 of the Indian Penal Code (for short, "the I.P.C.") against 14 persons. Out of the said 14 persons who have been arraigned as the accused, 7 are Police Officers. One of the accused is a Sales Tax Officer. It is alleged in the complaint that there are in existence a large number of gangs which are indulging in the organised criminal activities of adulteration of petrol and diesel at the petrol pumps. The said gangs are procuring the petroleous adulterant chemicals through various sources for mixing them in the petrol and diesel. Their modus operandi consists of stealing the petrol and the diesel at illegal joints carried by the tankers from Government companies, mixing kerosene or Naphtha as substitutes, making forgery for the purpose of cheating, using forged document as genuine, opening regular workshops for processing on the imported Naphtha and thereby converting Naphtha into an adulterant and using the same for the purposes of adulteration at the petrol pumps instead of selling it to the licensed companies, also using cheap blue subsidized kerosene for adulteration and thus compelling the common public to buy costly white imported kerosene by creating artificial shortage of the fuel.
3. According to the complainant, on 1-9-2003, he has attached to the Local Crime Branch, Thane Rural. During his patrolling duty, he seized a tanker carrying suspicious chemical product which was loaded at M/s. Kalpita Tex Chem (India) Pvt. Ltd., Silvassa and allegedly to be unloaded at M/s. Surjit Petro Chem Pvt. Ltd., Goa, as shown in the bill carried by the driver and took necessary action at Kasa Police Station, District Thane, as per section 41(1) (d) of the Code. The complainant arrested the driver Mr. Phuleshwar Yadav and sought his Police Custody, which was granted. During the course of investigation, the complainant recorded a number of statements. According to him, his investigation has revealed that the accused have formed an organised crime syndicate and have hatched a conspiracy and pursuant to the conspiracy they have committed several offences under the M.C.O.C.A. It is further alleged that these offences have been committed with active participation, help and assistance provided by the officers of the Police Department and various other Government Departments. The complaint recites the particulars of the offences. According to the complainant, in order to keep him away from investigation and to facilitate the commission of an organised crime with the help of accused Jagan Pimple, the organised gang made one Sandeep Singh, a transport agent to file a concocted criminal complaint against the complainant and other officers that the demanded Rs. 3,00,000/- as bribe on 1-9-2003 to release the tanker and asked the said Sandeep Singh to pay the bribe amount to one Himmat Nanda. According to the complainant, this is
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