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CASE NO.: Special Leave Petition (crl.)  6312 of 2006

PETITIONER: VINOD G. ASRANI

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT: 21/02/2007

BENCH: Dr.AR. Lakshmanan & Altamas Kabir

JUDGMENT: J U D G M E N T

ALTAMAS KABIR, J.          Four writ petitions, in which the petitioners had  challenged their prosecution under the Maharashtra Control  of Organized Crime Act, 1999 (hereinafter referred to as ’the  MCOCA’) and seeking quashing of the First Information Report   and the grant of approval under  Section 23 (1) (a)  and  sanction under Section 23 (2) of MCOCA,  were disposed of by  a common order passed by the Bombay High Court on  10th  November, 2006.  The writ petitioners had contended that no  case had been  made out against them regarding their  complicity in the organized  criminal activity  or organized   crimes alleged to have been committed by the organized crime  syndicate known as Chhota Rajan gang under the leadership  of Rajan Sadashiv Nikalje alias Chhota Rajan alias Nana  alias  Sheth.  All the said writ petitions were dismissed by the said  order but only Vinod G. Asrani is before us in this special  leave petition.  While the other writ petitioners as part of the  organized crime syndicate  led by Chhota Rajan are alleged to  have indulged in  extortion of large sums of money from  developers who undertake redevelopment work of old buildings  in Tilak Nagar and other areas of Bombay, by extending  threats of violence including murder, the petitioner herein is  alleged to have been found working  for the organized crime   syndicate and had facilitated  the appropriation of  funds  extorted from builders in Tilak Nagar area, Chembur, Mumbai,  at the behest of Pradip  Madgaonkar @ Bandya Mama, which  have been siphoned  of in the accounts of the family members  of  Chhota Rajan and  M/s. Khusi Developers Private Limited  and others.  It was further alleged that the petitioner had  acted as  an intermediary and had played  an active role in the  conspiracy and had also  invested and/or diverted huge  amounts which had been collected by way of extortion.  The  further allegation against the petitioner is that he had helped  one of the other  writ petitioners, namely, Sujata Rajendra  Nikalje @ Nani to launder large amounts of money and acted  as a  money changer by manipulating accounts  so that the  fruits of the organized crime could be enjoyed by members of  the organized crime syndicate and their leader  Chhota Rajan  and his family members.            While disposing of the writ applications, the High Court  made it clear at the very  outset that it was not going into the   question as to  whether the material collected by the  investigating agency against the petitioners was sufficient to  prosecute  them under the provisions of the MCOCA and that

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the writ petitioners, who were the accused in the case, would  have sufficient  opportunity to contest the same before the  Special Court.  The High Court confined itself only to the  question as to whether the prosecution had complied with the  provisions of Section 23 (1)  and (2) of  MCOCA.  Although, it  was brought to the notice  of the High Court that the name of  the petitioner herein was not included in the approval granted  under Section 23 (1) (a) of MCOCA  and that his name was  subsequently included in the sanction  granted by the  Commissioner of Police under Section 23 (2) of  MCOCA, the  High Court did not accept the petitioner’s contention that  as  no prior approval had been granted as far as  the petitioner   was concerned, the Investigating  Officer could not have   proposed to charge sheet  the petitioner.  The High Court also  rejected the petitioner’s contention that  the sanction granted  by the Commissioner of  Police on the basis of the said  proposal was illegal and not in accordance with the procedure  established by law.  The High Court  accordingly dismissed the  writ application filed by the  petitioner herein along with the  writ applications  filed by the others.         Appearing for the petitioner,  Mr. Sushil Kumar, learned  senior counsel, reiterated the submissions  made before the  High Court.   He emphasized the fact  no approval  had been  obtained to commence the investigation against the petitioner  under Section 23 (1) (a) of MCOCA  and consequently  the  Investigating Officer did not have the authority to commence  investigation under MCOCA  into the offences alleged to have  been committed by the petitioner.  He urged that if the very  initiation of the investigation stood  vitiated by the failure to  obtain  approval under Section 23 (1) (a), the subsequent  sanction granted under Section 23 (2) also stood vitiated and  the proceedings before the    Special Court on the basis thereof  were liable to be  quashed.           Apart from the above, Mr. Kumar urged that there was  hardly any justification to involve or to implicate the petitioner  under the provisions of the  MCOCA.  It was urged that there  was no material on record to  connect the petitioner with the  commission of the offences relating to extortion as complained  of against the other accused.  The only allegation against the  petitioner is that he had acted  as an intermediary in investing   and/or  diverting huge amounts which had been collected by  the crime syndicate and had helped the accused No.4 Sujata  Rajendra Nikalje to launder large sums of money and had also  acted as money changer by manipulating accounts.  Mr.  Kumar submitted that  the said activities could not be said to  be organized crime in relation to the provisions of MCOCA or  that the petitioner  was a  member  of an organized crime  syndicate  involved in such organized crime.         It was submitted that the complicity of the petitioner with  the offences alleged against the others was not established by  the materials on record and the High Court was not justified  in dismissing the writ application filed by the petitioner   challenging the invocation of  the provisions of MCOCA  in his  case.          Mr.Sushil Kumar’s submissions  were strongly opposed  by Mr.  Altaf Ahmed, learned senior advocate, appearing for  the respondent-State of Maharashtra.  He submitted that the  process of investigation under MCOCA was similar to the  provisions  relating to investigations under the Code of  Criminal  Procedure.  He  urged that a complaint  may not  always  disclose the names of all the persons involved in the  commission of an offence but such names could  surface  during investigation.  Mr. Ahmed urged that the information  given to the investigating authorities regarding the commission  of a cognizable offence as per  Section 154 of the Code did not

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always contain the names of all persons connected  with the  alleged offence.  Subsequently, however, during investigation  such names  may come to light  and  charges could be  laid   against them also.  Similarly, in a complaint under Section 3  of MCOCA, an information is given of the commission of an  offence in respect whereof approval to investigate is sought  under Section  23 (1) (a).  Upon receipt of such approval, the  investigating authority  proceeds to investigate the offence.  Thereafter, if the charge is proved to be true and the  complicity  of others,  other than  those named in the F.I.R., is  also  prima facie established,  sanction under Section 23 (2) is  prayed  for  for prosecuting  all those persons who were found   during the investigation to be involved in the commission of  the offence.         According to Mr. Altaf Ahmed, the non-inclusion of the  petitioner’s   name in the approval granted under Section 23  (1) (a) is of no consequence since during investigation his  complicity was established and thereafter sanction was sought  to prosecute him along with the others under Section 23 (2) of  MCOCA.  Mr. Ahmed submitted that the allegations against  the petitioner were sufficient to charge sheet him under the  provisions of MCOCA along with other accused as being part    of an organized crime syndicate involved in the commission of  organized crimes.         We have carefully considered the submissions made on  behalf of the respective parties and the relevant provisions of  MCOCA  and we are of the view that the High Court did not  commit any error in dismissing  the petitioner’s writ  application.  We are  inclined to accept Mr. Altaf Ahmed’s  submissions that non-inclusion of  the petitioner’s name in  the approval under Section 23 (1) (a)  of MCOCA  was not fatal  to the investigation as far as the petitioner  is concerned.  On  the other hand, his name was included in the sanction  granted under Section 23 (2) after the stage of investigation  into  the complaint  where his complicity was established.  The  offences alleged to have been committed by the petitioner has  a   direct bearing and/or link with the activities of the other  accused as part of the Chhota Rajan gang which was an  organized crime syndicate.

       As pointed out by Mr. Ahmed, this Court in the case of  Kari Choudhary vs. Mst. Sita Devi & Ors., (2002) 1 SCC  714,  had while considering a similar question observed that  the ultimate object  of every investigation is to find out  whether the offences alleged  have been committed and, if so,  who had committed it.   The scheme of the Code of Criminal  Procedure makes it clear that once the information of the  commission of an offence is received under Section 154 of the  Code of Criminal Procedure, the investigating authorities take  up the investigation and  file charge sheet against whoever is  found during the investigation to have been involved in the  commission of such offence.  There is no hard and fast rule  that the First  Information Report must always  contain the  names of all persons who were involved in the commission of  an offence.   Very often the names of the culprits are not even  mentioned in the F.I.R. and they surface only at the stage of  the investigation.  The scheme under Section 23 of  MCOCA  is  similar   and Section 23 (1) (a) provides a safeguard that no  investigation  into an offence under MCOCA  should be  commenced without the approval of the concerned authorities.   Once such approval is obtained, an investigation is  commenced.  Those who are subsequently found to be  involved in the commission of the organized crime can very  well be proceeded against once sanction is obtained against  them under Section 23 (2) of  MCOCA.

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As to whether any offence has at all been made out  against the petitioner for prosecution under MCOCA, the High  Court has rightly pointed out that the accused will have  sufficient opportunity to contest the same before the Special  Court. Having regard to the above, we are not inclined to  interfere with the order passed by the High Court and the  special leave petition is accordingly dismissed. By way of an interim order dated 15th December, 2006,  the petitioner had been granted interim bail which was  extended from time to time.  In view of this judgment, the  petitioner’s bail stands cancelled and he is directed to  surrender forthwith before the Special Court.