Back
2011 Supreme(Bom) 1278
HIGH COURT OF JUDICATURE AT BOMBAY
K.U. CHANDIWAL, J.
Lt. Col. Prasad Shrikant Purohit & Others
Versus
National Investigation Agency & Others
CRIMINAL WRIT PETITION NO.2136 OF 2011
Decided on : 20-10-2011
For the Petitioners:U.R. Lalit, Sr.Advocate a/w with Shrikant Shivade i.b. M.S. Mohite, Advocates.
For the Respondent:R1 & R2, D.J. Khambatta, Additional Solicitor General with Ms. Revati Mohite Dere, Ms. Rohini Salian & Afroz Shah, Advocates, S.S. Pednekar, APP.
Headnote:
MCOC Act - National Investigation Agency Act - Section 21(7) of MCOC Act, 1999 - Summary of Acts and Sections: MCOC Act, 1999 (Section 21(7)); National Investigation Agency Act, 2008 (Section 6, 8); Code of Criminal Procedure, 1973 (Section 167, 173(8), 309(2)) - The judgment discusses the applicability of the MCOC Act and the NIA Act, the interpretation of section 21(7) of the MCOC Act, and the interplay with the provisions of the Code of Criminal Procedure. It highlights the overriding effect of section 21(7) of the MCOC Act over section 167 of the Cr.P.C., the retrospective application of the NIA Act, and the power of the NIA to take over pending investigations.
Fact of the Case:
The petitioners, accused in a special case under the MCOC Act, challenged an order permitting police custody for interrogation. The matter involved the interpretation of the MCOC Act, NIA Act, and the Cr.P.C. The petitioners raised questions regarding the NIA's authority to file an application under section 21(7) of the MCOC Act, the retrospective applicability of the NIA Act, and the remand of accused from judicial custody to police custody after a long period.
Finding of the Court:
The court found that section 21(7) of the MCOC Act has an overriding effect on section 167 of the Cr.P.C. It held that the NIA Act permits a new agency to take over pending investigations and has retrospective application. The court also clarified that the provisions of section 309 of the Cr.P.C. do not obliterate the provisions of section 21(7) of the MCOC Act.
Issues: The issues involved the applicability of the MCOC Act and the NIA Act, the interpretation of section 21(7) of the MCOC Act, and the interplay with the provisions of the Cr.P.C. The court addressed questions regarding the NIA's authority to file an application under section 21(7) of the MCOC Act, the retrospective applicability of the NIA Act, and the remand of accused from judicial custody to police custody after a long period.
Ratio Decidendi: The court held that section 21(7) of the MCOC Act has an overriding effect on section 167 of the Cr.P.C. It also found that the NIA Act permits a new agency to take over pending investigations and has retrospective application. The court clarified that the provisions of section 309 of the Cr.P.C. do not obliterate the provisions of section 21(7) of the MCOC Act.
Final Decision: The petition was dismissed, and the rule was discharged. The operation of the order was stayed up to a specified date.
Heard. Rule. Rule made returnable forthwith. With consent of the parties, matter is finally heard.
2. The Petition is under Article 227 of the Constitution of India and section 482 of the Code of Criminal Procedure. The Petitioners are Accused in MCOC Act Special Case No.1 of 2009 and 8 of 2011 on the file of the learned Special Court Judge under MCOC Act for Greater Bombay.
3. An Application under section 21(7) of Maharashtra Control of Organised Crime Act, 1999) was moved by the respondent-National Investigation Agency (for short NIA) for interrogation of the Petitioner Ramesh (Accused no.4) Anand (Accused no.9) and Sudhakar (Accused no.10). The Petitioners were earlier in police custody for 12, 18, 20 days respectively. The MCOC case was initially investigated by ATS, Mumbai and final report under section 173 of Code of Criminal Procedure, 1973 (Cr.P.C.) was submitted on 30.1.2009 in C.R.No.18 of 2008 vide Special MCOC Case No.1 of 2009 and supplementary charge sheet vide MCOC case no.8 of 2011 was filed on 21.4.2011.
4. By order dated 1st April, 2011 of the Ministry of Home Affairs, Government of India, investigation is taken over by NIA and FIR is registered at crime No.5/2011 by PS. NIA on 13.4.2011. While the Petitioners were in judicial custody permission was sought to interrogate them by visiting the jail. It was accordingly granted. However, during such interrogation, NIA felt that the Petitioners have lot of information to communicate concerning two absconding accused namely Sandip Dange and Ramji Kalsangra. They are also having crucial information regarding the facts which are not so far surfaced in the investigation and consequently by an Application, police custody was sought as the Petitioners were to be confronted with new facts which have been emerged.
5. The learned Judge allowed Misc. Application No.98/2011 permitting police custody to the Petitioners for 8 days from 22.7.2011 up to 30.7.2011. The order is questioned by the Petitioners.
6. Mr.Lalit and Mr.Shivade for Petitioners exhaustively dealt with the law applicable namely The Maharashtra Control of Organised Crime Act, 1999 (for short MCOC Act) and The National Investigation Agency Act, 2008 (34 of 2008) (for short NIA Act) to interpret the respective position vis-a-vis applicability of Cr.P.C. and how the prosecution (NIA) could not exhaust the remedies under MCOC Act and in particular taking umbrella of section 21(7) of MCOC Act.
7. During the course of submissions, it was canvassed by learned counsel for Petitioners in identically placed situation, judgment delivered by this Court in the matter of IQBAL HUSSAIN KASKAR VS STATE OF MAHARASHTRA REPORTED IN 2003 ALL MR (Cri) 1817 is not depicting correct position of law owing to earlier judgment of Supreme Court in STATE VS DAWOOD IBRAHIM KASKAR reported in 1997 CR.L.J. 2989 and consequently judgment of IQBAL HUSSAIN KASKAR is per in-curiam.
8. Three basic points as canvassed by the learned counsel for the petitioners emerge:
a) Can NIA make an application under section 21(7) of MCOC Act as it is only the authorities who investigated originally the matter of MCOC Act and submitted charge sheet alone can file an Application under MCOC Act?
b) Whether NIA Act is retrospectively applicable to the investigation already completed and charge sheet is filed when the matter is already sub-judice before the competent Court?
c) Whether accused who were in judicial custody and being produced under section 309 of Cr.P.C. can be remanded to police custody after long lapse of period?
9. Following are undisputed facts in the present case :
(a) The offence in question is dated 29.9.2008.
(b) NIA Act came into force on 31.12.2008.
(c) NIA investigates scheduled offences as specified in the schedule in terms of section 2 (1) (f) of the NIA Act.
(d) Permission/order of the Central Government is dated 1.4.2011 to take further investigation.
(e) Petitioners are in custody from November, 2008.
(f) The s
