The Special Judge, under MCOCA, has the authority to direct the registration of an FIR and conduct an investigation as a Court of original jurisdiction.

Sunita Gupta, J.:--

1. Present appeal under Section 12 of Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred as MCOCA) r/w Section 482 Cr.P.C. has been preferred challenging the order dated 29th July, 2013 passed by the learned Additional Sessions Judge whereby on the application moved by the complainant under Section 9 of the MCOCA r/w Section 319 Cr.P.C., FIR was ordered to be registered against the appellants.

2. It is submitted by the learned counsel for the appellant that Section 9 of MCOCA does not give any power to the Court to give direction to register FIR and this Section provides for taking cognizance of an offence by the Special Court of MCOCA. Passing of the order by the learned Sessions Judge to register FIR does not amount to taking cognizance. Hence, the order passed by the learned Sessions Judge is not maintainable. Moreover, under Section 23(1)(a) of MCOCA, 1999, the information of commission of any organized crime shall not be recorded without prior approval of the police officer not below the rank of the Additional Commissioner of Police. The penal provisions has to be strictly complied with. However, in the instant case, the learned Sessions Judge committed a grave error in directing the SHO to register the FIR. Under Sub-Section (2) of Section 23 of MCOCA, the Special Judge cannot take cognizance of any offence unless sanction has been previously given by the police officer not below the rank of Additional Commissioner of Police. In such a situation, even as far as private complaint is concerned, sanction has to be obtained from the concerned police officer before cognizance is taken by the Special Judge. By placing reliance on Jamiruddin Ansari v. Central Bureau of Investigation & Anr., 2009 Cri. LJ 3961, it was submitted that the impugned order is in violation of the provisions of MCOCA and as such, deserves to be set aside.

3. Per contra, it was submitted by the learned Additional Public Prosecutor for the State that a Special Judge being court of original jurisdiction has power under Section 156(3) Cr.P.C. to order investigation and investigation cannot be done without registration of FIR. Reliance was placed on Mohd. Yousuf v. Afaq Jahan (Smt.) and Anr., (2006) 1 SCC 627. Furthermore, registration of FIR was not a mechanical exercise and it was registered only after obtaining the requisite sanction. By relying upon R.N. Aggarwal v. R.C. Bansal and Ors., JT 2014(12) SC 79 and Dr. A.S. Narayana Rao v. CBI, WP (Crl.) 1626/2011, it was submitted that the impugned order does not suffer from any infirmity which calls for interference. As such, the appeal is liable to be dismissed.

4. Learned counsel for respondent No. 2 besides supporting the submissions made by the learned Additional Public Prosecutor for the State further submitted that the FIR has already been registered on 14th August, 2013 after obtaining requisite permission from the competent authority. As such, there is no violation of Section 23 of the Act. The order under challenge is dated 29th July, 2013 and even after registration of FIR, no relief has been sought for quashing of FIR. Moreover, as per the grounds of appeal itself, mere registration of FIR is not taking cognizance of the offence, hence, even otherwise Section 23 of the Act is not applicable. As such, the appeal is liable to be dismissed.

5. I have given my considerable thoughts to the respective submissions of learned counsel for the parties.

6. An application under Section 9 of MCOCA r/w Section 319 Cr.P.C. was moved by the complainant Mohd. Mobin for taking action against Iqbal Gazi, Kamalludin @ Kamal, Mohd. Umar @ Pau and Mohd. Jamal @ Ranjha while giving the details of their previous involvements. Although the application was also against Saleem @ Bobby but during the pendency of the application, he died on 15th July, 2013, as such, the complaint against him was not pressed. Vide impugned order dated 29th July, 2013, learned Special Judge observed t