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2010 Supreme(Bom) 1713
High Court of Judicature at Bombay
A.M. KHANWILKAR & U.D. SALVI
Rasiklal Manikchand Dhariwal & Another
Versus
Central Bureau of Investigation & Another
CRIMINAL WRIT PETITION NO.1956 OF 2005 WITH CRIMINAL WRIT PETITION NO.2016 OF 2005
Decided on : 08-12-2010
For the Petitioners:Sushil Kumar, Sr.Counsel with S.K. Jain, Hitesh Jain & Ms. Adity Kumar i/b Subhash Jadhav, Shirish Gupte, Sr.Counsel with Ganesh Gole & Jaimini Shah, Advocates. For the Respondents:R1, Darius Khambatta, Addl.Solicitor General & Sr.Counsel with Raja Thakare, Ms.Revati Mohite-Dere, Advocates & Afroz Shah, (CBI), R2, Dr. F.R. Shaikh, A.P.P.
Headnote:Maharashtra Control of Organised Crime Act, 1999 - Sections 3 and 23(1)(2)-Sanction for prosecution-Offences under Indian Penal Code and Arms Act-FIR registered for on 27.9.2004-State Police Force registered FIR for offence under Section 3 of Act after prior approval-Charge-sheet submitted against four accused on 24.1.2005-During further investigation, CBI took over w.e.f. 9.2.2005-Change in investigating agency-Not means that CBI could not proceed unless fresh prior approval procedure under Section 23(1)(a) was followed-Offence subsequently investigated can be clubbed and treated as one single offence of organised crime under Act.-The investigation for offence under Section 3 of the MCOCA proceeded only after prior approval was granted on 21st October, 2004 by the competent authority. Indeed, the investigating agency was later on changed and eventually CBI took over the investigation with effect from 9th February 2005. The fact that there was change in the investigating agency does not mean that the new investigating agency could not have proceeded in the matter or undertaken further investigation from the same stage when it took over the case, unless fresh prior approval procedure under Section 23(1)(a) was followed. Such argument clearly overlooks that with the change of investigating team, what happens is only further investigation is taken over by the subsequently nominated investigating team. That does not efface the prior approval granted by the competent authority. Even the fact that the newly appointed investigating agency re-registers the case, does not affect the prior approval granted by the competent authority. The re-registration of the case with the newly appointed investigating agency is with a view to continue with the further investigation of the same case and not an independent case as such. In this view of the matter the fact that the petitioner herein have been proceeded on the basis of pre-existing registered FIR which does not make reference to the involvement of the petitioners in the offence referred to in the said FIR would not take the matter any further. Inasmuch as during the course of investigation, if materials has come on record to disclose the involvement of the petitioners herein in relation to the offence referred to in the FIR and on the basis of which charge-sheet were to be filed it would not be necessary to first register offence against such persons whose involvement has been disclosed during the investigation. But the prosecuting agency would be competent to file charge-sheet on compliance of other formalities preceding filing of the charge-sheet in Court against such persons. In such a case the question of obtaining of prior approval under Section 23(1)(a) of the MCOCA against such person would not arise and the prior approval which has already been granted on the basis of which investigation for offence punishable under Section 3 of the MCOCA proceeded would be sufficient compliance. As matter of fact on fair reading of prior approval dated 21st October, 2004 it is not as if it has been granted only against specific accused. Such argument cannot be countenanced. In any case, in law even if the prior approval under Section 23(1)(a) of the MCOCA was to be granted in connection with the FIR which mentioned name of only some of the accused but if during the course of investigation, it transpires that even other persons were engaged in the commission of the alleged offences, the prior approval so granted would be sufficient compliance and the investigating agency would be free to investigate the matter even against such persons but would be bound to take sanction of the appropriate authority even against the additional accused, before filing of the charge-sheet which would named accused. Suffice it to observe that no separate approval under Section 23(1)(a) would be required for every offence subsequently investigated and found to have been committed by the same organised crime syndicate as part of its continuing unlawful activity. For, it could be clubbed and treated as one single offence of organised crime under the MCOCA. The question as to whether that offence is in relation to offence of organised crime committed in the course of some other transaction or not in relation to same facts, is a matter to be considered only after filing of further police report and the sanction order.
Maharashtra Control of Organised Crime Act, 1999 - Section 23(2)-Delhi Special Police Establishment Act, 1946, Section 5-Sanction of prosecution-Investigation - Further investigation handed over to CBI, a Special Police Force called Delhi Special Police Establishment-Sanction under Section 23(2) of Act, 1999 to be accorded by officer of rank of Additional Director General of Police-Said Special Police Force established by virtue of Act, 1946-Jurisdiction of said police force in State of Maharashtra done by issuance of order under Section 5(1) of Act, 1946.- Ordinarily, it is the member of the police force of the State of Maharashtra who is expected to discharge the duty of according sanction under Section 23(2) of the MCOCA. Indeed, the said officer should be police officer not below the rank of Additional Director General of Police. However in the present case, the further investigation was handed over to CBI which is a Special Police Force called the Delhi Special Police Establishment. The said police force is established by virtue of the Delhi Special Police Establishment Act, 1946 (hereinafter referred to as the Act of 1946). The scope of activity of the said police force can be discerned from the said enactment. The preamble of the Act predicates that it is an act to make provision of a constitution of a Special Police Force in Delhi "for the investigation of certain offences" in the union territories, for the superintendence and administration of the said force and for the extension to other of the powers and jurisdiction of the members of the said force in regard to the investigation of the said offence. From the preamble it is obvious that emphasis has been placed on the activity of investigation of the specified offence by the Special Police Force constituted under the said Act of 1946. Section 2 of the said Act deals with constitution and powers of special police establishment sub-section (1) thereof provides that not withstanding anything in the Police Act, 1861, the Central Government may constitute a special police force to be called the Delhi Special Police Establishment "for the investigation" in any union territory of offences notified under Section 3. On issuance of order by Central Government, the members of the Special Police Force of or above the rank of sub-inspector may exercise any of the powers of the officer in charge of a police station in the area in which he is for the time being and when so exercising such powers be deemed to be an officer incharge of a police station discharging the functions of such an officer within the limits of his station. Insofar as extending the jurisdiction of special police establishment to other areas other than union territories such as State of Maharashtra, that is done by issuance of order under Section 5(1) of the Act.
A.M. Khanwilkar, J.
1. Both these Petitions can be conveniently disposed of together, as the questions raised in the respective Petitions are common.
2. Shorn of details, the facts which have given rise to filing of the above two Writ Petitions by Rasiklal Manikchand Dhariwal (hereinafter referred to as `RMD’ for the sake of brevity) and Jagdish M.Joshi (hereinafter referred to as `JMJ’ for the sake of brevity), can be set out as under:
(a) The Petitioners have rushed to this Court essentially on account of order, passed by the Special Court constituted under the Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred to as the `MCOC Act’) for Greater Mumbai, dated 26th July 2005, in Special Case No.1/2005; and also because of non-bailable warrants issued against them in connection with the said case i.e. DCB CID CR No.152/2004. The Petitioner RMD asserts that he is the Chairman of M/s.Dhariwal Industrial Limited, having its registered office at Pune. The said Dhariwal Industries is part of Manikchand Group Industries, which is interalia engaged in the business of Gutka, Panmasala, Bidi, Electrical Accessories, Lamination, Packaging, Mineral Water, etc. for the last 40 years. Whereas, Petitioner-JMJ asserts that he is the Master Blender of Perfumes and Fragrances and holds registered Patent for Mouth Freshener preparation issued by the Government of India. According to him, besides India, he has business establishments carrying manufacturing and blending of Perfumes and Mouth Fresheners’ preparation and U.A.E., Singapore and Indonesia.
(b) Both these Petitioners assert that they are not even remotely connected with the criminal case originally registered for offence punishable under the provisions of Section 3 and 25 of the Arms Act and Sections 120-B, 384, 387 r/w 34 of the Indian Penal Code (hereinafter referred to as the`I.P.C.’) against one Jamiruddin @ Jumbo @ Kalya Gulam Rasul Ansari and three others.
(c) The said F.I.R. was registered on 27th September 2004 as LAC Case being CR No.122/2004. The accused No.1 Jamiruddin came to be arrested on 10th October 2004 followed by another accused namely one Rajesh @ Rajubhai Laxminarayan Panchariya. During the interrogation, the arrested accused allegedly referred to some transaction in Dubai involving both the Petitioners before this Court. It is the case of the Petitioners that they had no connection with the said transaction, in particular, the case under investigation.
(d) During the course of investigation of the said case on the basis of material which became available to the Investigating Officer, it was decided to proceed against the named accused persons also for offence under MCOC Act. Accordingly, prior approval of the Joint Commissioner of Police (Crime), Mumbai under Section 23(1)(a) of the MCOC Act was obtained. The said Authority recorded satisfaction that there was sufficient material to disclose that offence of organized crime has been committed by the members of the organized crime syndicate as defined in Section 2 of MCOC Act.
(e) Being satisfied, the said Authority granted prior approval for applying the provisions of Section 3 of the MCOC Act against the named accused persons along with Sections 120-B, 384, 387 and 34 of the I.P.C. r/w Section 25 of the Arms Act. The said approval order dated 21st October 2004 reads thus:
“No.58:/Jt.C.P.(Crime)/U-IX/2004
Office of the
Jt.Commissioner of Police (Crime),
Brihan Mumbai.
Date : 21 October, 2004.
ORDER
PRIOR APPROVAL UNDER SECTION 23(1)(a) OF MAHARASHTRA CONTROL OF ORGANISED CRIME ACT, 1999
Reference: Proposal submitted by Asst.Commissioner of Police of (D-1/N-W), Crime Branch, Mumbai seeking prior approval under section 23(1)(a) of Maharashtra Control of Organised Crime Act, 1999, for applying section 3 of M.C.O.C. Act, 1999.
I have perused the proposal submitted by A.C.P. Shri Suresh Walishetty, Asst. Commissioner of Police (D-1/N-W), Crime Branch, Mumbai through the Dy.Commissioner of
