A.M. Khanwilkar, J.

Heard Counsel for the parties.

2. This Writ Petition is filed by the original complainant. He had filed a private complaint for initiating criminal action against Respondent No. 2 Shri. Sudhakar B. Pujari, who was, at the relevant time, working as Assistant Commissioner of Police in Anti Corruption Bureau, Mumbai Unit, for offence punishable under Section 506(2), 504 of the Indian Penal Code read with Section 3(2) of the Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred to as “the MCOCA”). The Petitioner has challenged the order passed by the Commissioner of Police, Mumbai dated 28th October, 2004, declining to grant sanction to prosecute Respondent No. 2 for the alleged offences as also the order passed by the Special Judge under the MCOCA, Mumbai, dated 8th September, 2004 and the continuation order dated 6th November, 2004, rejecting the complaint filed by the Petitioner, for want of sanction accorded by the Competent Authority, to prosecute Respondent No. 2.

3. The question, as to whether criminal action for offences punishable under the provisions of the MCOCA can be initiated on a private complaint and whether the Special Court can direct investigation of the said crime on the basis of such private complaint, has been answered by the Apex Court in the case of JamiruddinAnsari vs. Central Bureau of Investigation and Anr. (2009 (6) SCC 316). This decision takes the view that institution of private complaint for criminal offence punishable under the provisions of the MCOCA can be maintained. However, it went on to observe that the Special Court can take cognizance of that complaint only after the Competent Authority referred to in Section 23 of the Act accords sanction in that behalf and not otherwise. In Paragraph 39 of this decision, the Court has further noted that even on a private complaint about the commission of an offence of organised crime under the MCOCA, cognizance cannot be taken by the Special Court, without due compliance of Subsection 1 of Section 23, which starts with a non obstante clause. Section 23 of the said Act reads thus:-

“23. Cognizance of, and investigation into, an offence.

(1) Notwithstanding anything contained in the Code,

(a) no information about the commission of an offence of organised crime under this Act, shall be recorded by a police officer without the prior approval of the police officer not below the rank of the Deputy Inspector General of Police;

(b) no investigation of an offence under the provisions of this Act shall be carried out by a police officer below the rank of the Deputy Superintendent of Police.

(2) No Special Court shall take cognizance of any offence under this Act without the previous sanction of the police officer not below the rank of Additional director General of Police.”

4) Sub-section (1) is in two parts. The first part mandates that no information about the commission of an offence of organised crime can be recorded by a police officer, without the prior approval of the police officer not below the rank of Deputy Inspector General of Police. In the present case, it is not necessary to dilate any further with regard to the efficacy of this provision, as the criminal action was intended to be commenced on the basis of a private complaint, directly filed before the Special Court. Nevertheless, the second part of Sub-section (1) may be apposite, which mandates that no investigation of an offence under the provisions of the Act can be carried out by a police officer below the rank of Deputy Superintendent of Police. In the present case, the Special Court, consequent to the filing of the private complaint, vide order dated 30th April, 2004, issued directions that copy of the affidavit as also of the miscellaneous application be sent to the Commissioner of Police, Mumbai. The Commissioner was directed to depute a competent officer not below the rank of Deputy Superintendent of Police, for recording information from th