WP.974.2005.judgment.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

APPELLATE SIDE

CRIMINAL WRIT PETITION NO. 974 OF 2005

AVINASH TUKARAM SANAS

Age 40 years of Mumbai,

Indian Inhabitant,

residing at 101, Coronation,

Satguru Gardens, Thane,

Dist. Thane

(presently detained in Thane

Central Jail)

:-

PETITIONER

VERSUS

1. STATE OF MAHARASHTRA

2. SUDHAKAR B. PUJARI

3/3 Ekrar Bldg, Ekrar Road,

Borivali (W), Mumbai

and Vile Police Station,

Vile Parle (E), Mumbai.

:-

RESPONDENTS

Mr. S. B. Shetye, i/b. Mr. Samir Vaidya, for the Petitioner.

Ms. A. S. Pai, APP, for Respondent State.

Respondent No. 2 in person.

CORAM:-

A.M.KHANWILKAR &

K.K.TATED,JJ.

Judgment Reserved on

:- February 1, 2013

Judgment Pronounced on :- February 8,2013

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JUDGMENT :- (Per 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 28^th 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 8^th September, 2004 and the continuation order dated 6^th

November, 2004, rejecting the complaint filed by the Petitioner, for

want of sanction accorded by the Competent Authority, to

prosecute Respondent No. 2.

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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

Jamiruddin Ansari vs. Central Bureau of Investigation and Anr.¹.

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 Sub-section 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, -

1

2009 (6) SCC 316

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WP.974.2005.judgment.doc

(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 cri