PALSHIKAR, J.

( 1 ) THE above writ petitions were heard by us and the judgment was reserved. Then I prepared the judgment of the Bench in November, 2005 and circulated it to my learned colleagues on the Bench. However to my dismay, i was informed by both my colleagues that they do not agree with the view taken by me on the presumption that they agree with me. I then read the majority view rendered by Honble Shri Justice D. B. Bhosale. Having given my anxious consideration to the views expressed I found it impossible to agree with the majority view. Hence this opinion.

( 2 ) I regret my incapacity to convince my learned colleagues to the view that I propagated. In my humble opinion, the majority view has the result of virtually destroying the safeguards provided under the MCOC Act. The majority view reads several things into the Act which are not legislated. It has the effect of permitting the Special Court under the Act not only to take cognizance of private complaint alleging commission of offences under the MCOC Act and order investigation under section 156 (3) of Criminal Procedure Code when section 23 of the MCOC Act specifically bars it.

( 3 ) SPECIAL Court is not a Court of Sessions as defined by the Code. Section 156 specifically contemplates Magistrate empowered under section 190 of the Code. Section 190 of the Code speaks only of magistrate. What Magistrate means is defined by the code and Special Court as defined by sections 5 and 6 certainly is not a Magistrate. But for the provisions of sections 5 and 6 of the MCOC Act the Special Court contemplated by the Act does not come into existence. It is not in the hierarchy of Courts mentioned in the criminal Procedure Code. It is not a Court of magistrate. It is not Court of Sessions. Section 156 specifically contemplates Magistrate as defined by criminal Procedure Code. The majority view has in effect held that Special Court constituted under sections 5 and 6 of the MCOC Act is a Magistrate as defined by Criminal Procedure Code for the purposes of exercising powers under section 156. Such construction is impermissible under any established principle of statutory interpretation.

( 4 ) ACCORDING to the majority view wherever legislature intended to prohibit use of the provisions of Criminal Procedure Code, 1974 it has specifically said so with non-obstante clause. Such clause is absent in section 9 and therefore a Special Court functioning under section 9 can act under section 156 and order inquiry under section 156 (3) though it is not a Court of magistrate as defined by the Code. Necessary corollary of this view would be that provisions of section 190 of criminal Procedure Code 1974 would apply which specifically prohibits a Court of Sessions which is the court of original jurisdiction as is the Special Court under MCOC Act from taking cognizance without committal proceedings. If because of absence of non-obstante clause provisions of Criminal Procedure Code 1974 are to be applied under section 9 then provisions of section 190 also must apply and committal of proceedings would become necessary. The Legislature knew this legal position and therefore put the clause under section 9 which permits a Special Court under the Act to take cognizance without committal proceedings. In effect according to the majority view a Special Court can direct investigation under section 156 (3) of the Code and can take cognizance of the matter inspite of bar under section 23 of the Act.

( 5 ) THE natural consequence of the majority opinion would be that any private citizen by mere allegation of possible commission of the offences under the Act can put the machinery of the State into motion persuading the Special Court to make order under section 156 (3) when that machinery cannot be put into motion by the police themselves unless there is an approval under section 23 (1) of the Act. It provides that even information regarding offences would not be recorded unless it is approved or san