IN THE SUPREME COURT OF INDIA CIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. _   ______OF 2009 (Arising out of S.L.P.(Crl.)No.5677 of 2007)

 Jamiruddin Ansari         …   Appellant  Vs.

 Central Bureau of    Investigation & Anr.            …   Respondents

WITH Criminal Appeal Nos.1085, 1088 & 1089 of 2006

J U D G M E N T

ALTAMAS KABIR, J.

1. Leave granted in SLP(Crl.)No.5677/2007.

2. Criminal Appeal Nos.1085, 1088 and 1089 of 2006  

have been taken up for final disposal along with  

SLP(Crl.)No.5677 of 2007, inasmuch as, they arise  

out of the same set of facts and common questions  

of law are involved.  SLP(Crl.)No.5677 of 2007 has  

been filed by Jamiruddin Ansari, challenging the  

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order passed by the Bombay High Court on 16th April,  

2007, rejecting his prayer for bail, although, he  

is  in  custody  since  his  arrest  on  10th October,  

2004, without trial.  Criminal Appeal No.1085/06  

has been filed by Ashok, son of Gyanchand Vohra,  

against the judgment of the Bombay High Court in  

Criminal Writ Petition No.127 of 2005, which had  

been  heard  by  a  Bench  of  three  Judges  on  a  

reference  being  made  to  resolve  two  conflicting  

views which had been taken by two Division Benches  

of  the  Bombay  High  Court  relating  to  the  

interpretation of Section 9(1) vis-à-vis Section 23  

of the Maharashtra Control of Organized Crime Act,  

1999  (hereinafter  referred  to  as  ‘MCOCA’).  

Criminal Appeal No.1088 of 2006 has been filed by  

one  Shabbir  Noormohamed  Patel,  raising  the  same  

questions  as  those  raised  in  Criminal  Appeal  

No.1085/06.  Criminal  Appeal  No.1089  of  2006  has  

been filed by the State of Maharashtra, challenging  

the judgment of the Bombay High Court dated 22nd  

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December, 2005, on the question as to whether the  

Special Court could take cognizance of an offence  

on a private complaint under Section 9(1) of MCOCA  

and order investigation in respect thereof under  

Section 156(3) of the Code of Criminal Procedure  

(Cr.P.C.).

3. The common thread running through these appeals  

is  the  question  as  to  whether  an  investigation  

could be ordered by the Special Court constituted  

under  MCOCA,  save  and  except  in  accordance  with  

Section  23(1)  of  MCOCA,  and  interplay,  if  any,  

between Section 9(1) and Section 23 of MCOCA. In  

order  to  understand  the  context  in  which  these  

questions have arisen, it is necessary to briefly  

set out the facts of the case.

4. On  5th  September,  2003,  one  Himmat  Nanda  was  

alleged to have been caught red-handed accepting a  

bribe  of  Rs.3  lakhs,  for  and  on  behalf  of  one  

Nitindra  Singh,  in  a  trap  set  up  by  the  Anti-  

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Corruption Bureau, Mumbai. Pursuant to his arrest,  

an offence was registered by the Anti-Corruption  

Bureau,  Mumbai,  under  Sections  7,  8,  9,  12,  

13(1)(d) and 13(2) of the Prevention of Corruption  

Act, 1988, being C.R. No.3071 of 2003, against the  

said  Nitindra  Singh  and  several  others.  It  was  

alleged that the said Himmat Nanda was, in fact,  

the  conduit  for  the  said  respondent,  Nitindra  

Singh.    

5. On 19th August, 2004, Nitindra Singh, who was  

an  Assistant  Police  Inspector,  filed  a  private  

complaint, being Special Case No.243 of 2004, under  

the  penal  sections  of  MCOCA  before  the  Special  

Judge, MCOCA Court, Mumbai, against 14 accused, 8  

of whom were senior police and government officials  

and members of the Anti-Corruption Bureau and some  

other government officials who were members of the  

raiding  party  in  the  above-mentioned  trap  case.  

After recording the statements of six witnesses on  

21st August, 2004, the learned Special Judge passed  

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an order under Section 202 Cr.P.C. directing the  

Commissioner of Police, Mumbai, to form a Special  

Investigation  Team  (hereinafter  referred  to  as  

‘SIT’)  to  raid  the  premises  of  all  the  accused  

named in the complaint filed by the said Nitindra  

Singh, who were none other than the complainants  

against Nitindra Singh and witnesses of the trap  

case along with all police officers of the Anti-

Corruption Bureau, who had conducted the raid in  

the trap case.  On 30th August, 2004, the Special  

Judge, MCOCA Court, appointed Smt. Meera Borvankar,  

Joint Commissioner of Police (Crime), Mumbai, to  

head the SIT. On 2nd September, 2004, acting on the  

instructions  of  the  State  of  Maharashtra,  Smt.  

Meera  Borvankar  filed  Criminal  Writ  Petition  

No.1772 of 2004 before the Bombay High Court on  

behalf  of  the  State  Government,  praying  for  

quashing  of  the  order  dated  24th August,  2004,  

passed by the learned Special Judge ordering the  

formation of a SIT to raid the premises of all the  

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accused named in the complaint; the order dated 26th  

August,  2004,  directing  urgent  investigation  and  

the order dated 30th August, 2004, appointing the  

writ  petitioner  to  head  the  SIT.   In  her  Writ  

Petition, Smt. Meera Borvankar categorically stated  

that none of the accused in the private complaint  

filed  by  Nitindra  Singh  was  a  member  of  any  

criminal gang and that the said complaint filed by  

Nitindra Singh was false, frivolous and liable to  

be quashed.   

6. Apart from the above, on 7th September, 2004,  

Ashok,  son  of  Gyanchand  Vohra,  the  appellant  in  

Criminal Appeal No.1085 of 2006 and the proposed  

accused No.6 in the said private complaint, filed  

Criminal  Writ  Petition  No.1801  of  2004  in  the  

Bombay High Court for quashing the above-mentioned  

orders  passed  by  the  MCOCA  Court,  Mumbai,  along  

with the complaint itself.   

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7. A similar writ petition, being Criminal Writ  

Petition  No.1802  of  2004,  was  filed  by  Sandeep  

Singh,  the  proposed  accused  No.2  in  the  private  

complaint  and  the  complainant  in  the  trap  case,  

praying for the self-same reliefs as prayed for by  

Ashok, son of Gyanchand Vohra.   

8. On  21st December,  2004  in  another  case,  a  

Division Bench of the Bombay High Court held that a  

private complaint under Section 9 of MCOCA could  

not be entertained without compliance with Section  

23 of the said Act. However, on the very next date,  

on 22nd December, 2004, another Division Bench of  

the Bombay High Court, while considering the Writ  

Petition filed by Smt. Meera Borvankar (Criminal  

Writ Petition No.1772 of 2004), quashed the three  

orders passed by the learned Special Judge on 24th  

August,  2004,  26th August,  2004  and  30th August,  

2004, on the private complaint filed by Nitindra  

Singh, but held that while entertaining a private  

complaint  under  Section  9  of  MCOCA,  the  Special  

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Court  could  take  recourse  to  the  provisions  of  

Section 156(3) Cr.P.C. and order investigation of  

such private complaint. The matter was sent back to  

the Special Judge with the aforesaid finding.   

9. Soon thereafter, on 10th January, 2005, on an  

application filed by Nitindra Singh, the Special  

Judge, passed an order under Section 156(3) Cr.P.C.  

and ordered the Commissioner of Police, Mumbai, to  

investigate into the complaint filed by Nitindra  

Singh.  The said order was challenged by Ashok, son  

of  Gyanchand  Vohra,  in  Criminal  Writ  Petition  

No.127 of 2005. When the same was taken up for  

consideration  on  23rd March,  2005,  the  learned  

Single Judge, noticed the divergence of opinion in  

the judgments delivered by the two Division Benches  

and referred the issue for decision to a larger  

Bench.  On 22nd December, 2005, the Full Bench of  

the  High  Court  gave  a  split  verdict  with  the  

majority view being that a private complaint filed  

under Section 9 of MCOCA was independent of Section  

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23 and compliance with the provisions of Section 23  

was  not  a  pre-condition  for  the  learned  Special  

Judge to take cognizance of an offence under MCOCA.  

The learned Special Judge was directed to consider  

afresh  the  private  complaint  filed  by  Nitindra  

Singh.

10. It is against the said judgment and order of  

the Full Bench that these appeals have been filed.  

11. Of  the  four  appeals  indicated  hereinbefore,  

Criminal Appeal No.1089 of 2006 filed by the State  

of  Maharashtra  was  taken  up  first  for  

consideration.   On  behalf  of  the  State  of  

Maharashtra  it  was  emphasized  that  a  special  

procedure had to be prescribed under MCOCA to deal  

with the rising graph of organized crime within the  

State of Maharashtra which could not be controlled  

under the existing laws. It was pointed out that  

MCOCA  made  provisions  for  dealing  with  offences  

under  the  Act  by  the  Special  Court  to  be  

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constituted under Section 5 of the Act.   It was  

also submitted that Section 9 of MCOCA provides the  

procedure to be followed by the Special Court in  

taking  cognizance  of  an  offence  and  the  powers  

vested  in  it  for  holding  a  trial  into  such  

offences.   Mr. U.U. Lalit, learned Senior Counsel,  

appearing  for  the  State  of  Maharashtra,  further  

submitted that under the MCOCA, the Special Judge  

discharged dual functions.  At the stage of Section  

9, the Special Court discharged magisterial duties  

and  functions  as  prescribed  under  the  Code  of  

Criminal  Procedure  for  the  purpose  of  taking  

cognizance, but at the same time, under sub-Section  

(4) for the purpose of trial of any offence under  

the Act, it is vested with the powers exercised by  

the Court of Session and is to try such offence as  

if it were a Court of Session, in accordance with  

the procedure prescribed in the Code for conducting  

trials before a Court of Session.  Learned counsel  

submitted that under the provisions of the Act, as  

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indicated in Section 9, the Special Judge combined  

the functions of a Magistrate, as also a Court of  

Session, for the purpose of taking cognizance, and,  

thereafter, conducting the trial.

12. A  further  submission  was  made  that  although  

Section  9(1)  of  MCOCA  does  not  debar  a  private  

complaint  from  being  entertained  by  the  Special  

Judge, any subsequent action upon such complaint  

would be subject to the provisions of Section 23(2)  

of the said Act.  It was urged that on account of  

the provisions of sub-Section (2) of Section 23 of  

MCOCA, the Special Court was prevented from taking  

cognizance of any offence under the Act without the  

previous sanction of a police officer, not below  

the rank of Additional Director General of Police.  

It was submitted that the said provision did not  

contemplate an independent inquiry by the Special  

Judge under Section 156(3) Cr.P.C. for the purpose  

of taking cognizance, since no cognizance could be  

taken  nor  could  an  investigation  be  made  or  

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directed de hors the provisions of Section 23.  Mr.  

Lalit submitted that Section 9(1) would have to be  

read harmoniously with Section 23(2) of MCOCA in  

order to give a meaningful effect to the provisions  

of both the Sections, having particular regard to  

the fact that under Section 25 of the Act, the  

provisions of MCOCA or any Rule made thereunder or  

any  Order  made  under  any  such  Rule  has  an  

overriding effect over any other law for the time  

being in force or any instrument having the force  

of law.

13. Mr. Lalit submitted that the decision of the  

Full Bench of the Bombay High Court was erroneous  

and  that  the  Hon’ble  Judges  who  were  in  the  

majority  had  erred  in  holding  that  on  a  plain  

reading  of  Section  9(1)  of  MCOCA,  it  would  be  

apparent that it is not controlled by any other  

provision of the law, much less Section 23 thereof.  

It was also submitted that the Hon’ble Judges had  

erroneously held that Section 9(1) and Section 23  

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of MCOCA were independent of each other and worked  

in totally different spheres.   The learned counsel  

contended  that  the  Hon’ble  Judges  taking  the  

majority view had misconstrued the intention of the  

legislature  in  enacting  MCOCA  in  arriving  at  a  

conclusion that Section 23(2) of MCOCA was not a  

sine qua non for taking cognizance of a complaint  

under Section 9(1) of MCOCA.

14. It was then submitted that the comparison made  

by the Hon’ble Judges with regard to the sanction  

required  under  Section  197  Cr.P.C.  and  under  

Section 23(2) of MCOCA was misconceived, and since  

the safeguards provided in Section 23 of MCOCA had  

been  put  in  place  against  possible  misuse,  the  

powers of the Special Court to take cognizance on a  

private  complaint  under  Section  9(1)  would  be  

controlled by Section 23.  It was urged that the  

Hon’ble  Judges  had  possibly  overlooked  the  

provisions  of  Section  23(2)  of  MCOCA,  which,  in  

fact, was the safeguard against prosecution under  

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the  provisions  of  the  Act  which  are  highly  

stringent  and  could  not  be  jettisoned  for  the  

purpose of taking cognizance under Section 9(1) on  

a  private  complaint.   It  was  contended  that  in  

enacting the provisions of Section 23(2) of MCOCA,  

the  legislature  had  clearly  intended  that  

cognizance of any offence under the Act was not to  

be taken by the Special Court without the previous  

sanction of a senior police officer, not below the  

rank of Additional Director General of Police and  

that it was also the intention of the legislature  

that Section 23(2) should serve as a check against  

any  malafide private complaint under the Act made  

with the intention of misusing the provisions of  

the Act.

15. Supporting the minority view taken in the case,  

Mr. Lalit urged that if the majority view was to be  

accepted, it would cause violence to the provisions  

of the other Act, particularly, Sub-Section (1) of  

Section 23 which were also checks intended by the  

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legislature to prevent misuse of the provisions of  

the Act.  In this regard, reliance was placed on  

the decision of this Court in State of Orissa Vs.  

Ganesh Chandra Jew [(2004) 8 SCC 40], wherein while  

considering the bar under Section 197 Cr.P.C., it  

was observed that even if the public servant acted  

in excess of his duty, if a reasonable connection  

exists  between  the  act  complained  of  and  his  

official duty, the excess committed by him would  

not deprive him of the protection of Section 197.  

Reference was also made to the decision of this  

Court in  K. Kalimuthu Vs.  State by DSP [(2005) 4  

SCC  512],  where  the  provisions  of  Section  197  

Cr.P.C.  were  also  considered  and  in  addition  to  

what had been stated in earlier decisions, it was  

explained that the protection given under Section  

197 Cr.P.C., which is similar to the provisions of  

Section  23(2)  of  MCOCA,  is  to  prevent  the  

institution  of  possible  vexatious  criminal  

proceedings in respect of offences alleged to have  

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been committed by such public servants while they  

were acting as public servants.  It was observed  

that the intention of the legislature is to afford  

adequate protection to public servants to ensure  

that they are not prosecuted for anything done by  

them  in  the  discharge  of  their  official  duties,  

without reasonable cause.   

16. The same views, though in stronger terms, were  

expressed  by  this  Court  in  State  of  Himachal  

Pradesh Vs.  M.P. Gupta [(2004) 2 SCC 349] and in  

Sankaran Moitra Vs. Sadhna Das and another [(2006)  

4 SC 584], wherein a Three-Judge Bench was of the  

view that it was a condition precedent to obtain  

sanction under Section 197 Cr.P.C. when the offence  

was triable by a Court of Session.    

17. Mr. Lalit lastly referred to the decision of  

this Court in N.K. Ogle Vs. Sanwaldas [(1999) 3 SCC  

284],  where  it  was  clearly  observed  that  before  

coming to a conclusion regarding the application of  

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Section 197, the Court would have to come to a  

conclusion that there was a reasonable connection  

between the act complained of and the discharge of  

official duties, and that the act must bear such  

relation to the duty that the accused could lay a  

reasonable claim that he did it in the course of  

performance of such duty.   

18. In conclusion, Mr. Lalit submitted that similar  

to the control of Section 197 Cr.P.C. over Section  

190 Cr.P.C., Section 9 and Section 23 of MCOCA are  

so worded that Section 9 is controlled by Section  

23, inasmuch as, if Section 9 were to be treated as  

being  independent  of  Section  23,  then,  in  that  

event,  Section  23  could  be  applied  only  when  a  

complaint emanated from the police, which was not  

contemplated  under  the  Act.  Consequently,  the  

majority view of the High Court was erroneous since  

Section  9  could  not  be  treated  in  isolation  of  

Section  23,  as  otherwise  Section  23(2)  would  be  

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rendered inconsequential in relation to taking of  

cognizance under Section 9(1) of the Act.  

19. Learned  Additional  Solicitor  General,  Mr.  

Amrendra Sharan, appearing for the Central Bureau  

of Investigation (hereinafter referred to as ‘CBI’)  

supported  the  submissions  made  on  behalf  of  the  

State of Maharashtra that the provisions of Section  

9(1) and Section 23(2) of MCOCA had to be construed  

harmoniously in the case of private complaints. It  

was  submitted  that  the  bar  of  taking  cognizance  

without the previous sanction of a Police Officer  

not below the rank of Additional Director General  

of  Police,  as  contained  in  Sub-Section  (2)  of  

Section 23, prohibited the learned Special Judge  

from taking cognizance of any offence under the Act  

without such sanction.

20. Apart from the above, the learned Additional  

Solicitor General submitted that the CBI had filed  

an application in Criminal Appeal No.1089/06, filed  

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by the State of Maharashtra, for modification of  

the order passed on 19th September, 2006, staying  

all proceedings in the Trial Courts and the matters  

before the Bombay High Court.  He submitted that  

such stay should be vacated as far as Shri R.M.  

Dhariwal and Shri G.M. Joshi were concerned, since  

in  their  case,  prior  approval  under  Section  

23(1)(a) of MCOCA had been given on 21st October,  

2004 for investigation of Cr.No.122/04. The learned  

ASG further submitted that on the basis of material  

collected  during  the  investigation,  the  Special  

Court had passed an order on 26th July, 2005 under  

Section 319 Cr.P.C. summoning the said two persons  

in connection with the said case.  The said order  

was challenged in Crl.W.P.Nos.1956 of 2005 and 2016  

of 2005, which were transferred to the Full Bench  

on  a  representation  being  made  that  the  issues  

involved  in  the  writ  petitions  were  similar  to  

those  which  were  considered  by  the  Full  Bench.  

Upon holding that sanction under Section 23(2) was  

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not  required  for  taking  cognizance  on  a  private  

complaint, the Full Bench on 22nd December, 2005,  

remitted  the  two  writ  petitions  filed  by  Shri  

Dhariwal and Shri Joshi to the Division Bench for  

hearing.  It was also submitted that the Competent  

Authority  had,  on  21st February,  2006,  granted  

sanction under Section 23(2) of MCOCA in respect of  

the  said  two  writ  petitions.   The  learned  ASG  

submitted that since sanction under the provisions  

of  Section  23  of  MCOCA  had  been  given  by  the  

Competent  Authorities,  as  far  as  the  two  writ  

petitioners  are  concerned,  their  cases  were  

required to be delinked from the other appeals so  

that the records could be sent back to the Trial  

Court to proceed with the trial, as far as they  

were concerned.        

21. Mr. Sushil Kumar, learned Senior counsel who  

appeared  for  the  appellant  in  Criminal  Appeal  

No.1088/2006, submitted that the appeal had arisen  

out of a private complaint made by one Abdul Razzak  

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Zariwala under Section 9(1) of MCOCA.  He submitted  

that  instead  of  taking  cognizance  on  the  said  

complaint,  the  Special  Judge,  had,  by  his  order  

dated 4th May, 2005, directed the Commissioner of  

Police, Mumbai, to have the matter inquired into by  

a competent Police Officer, who could investigate  

the accusations made against the accused and submit  

a report pursuant to the investigation/ inquiry in  

keeping  with  the  provisions  of  Section  156(3)  

Cr.P.C. accompanied by the statutory sanction, as  

contemplated  under  Section  23(2)  of  MCOCA.  

According to Mr. Sushil Kumar, if the minority view  

of  the  Full  Bench  of  the  High  Court  regarding  

dependence of Section 9(1) of MCOCA on Section 23  

was  to  be  accepted,  then  the  exercise  of  

jurisdiction by the learned Special Judge was bad  

in law and was liable to be quashed. Referring to  

the  decision  of  this  Court  in  Harpal  Singh Vs.  

State  of  Punjab [(2007)  13  SCALE  728],  learned  

counsel  submitted  that  this  Court,  while  

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considering  the  provisions  of  the  Terrorist  and  

Disruptive  Activities  (Prevention)  Act,  1987  

(hereinafter referred to as ‘TADA’), in regard to  

grant  of  sanction,  confirmed  the  earlier  view  

expressed in  Rambhai Nathabhai Gadhvi and others  

Vs.  State of Gujarat [(1997) 4 SCC 744], wherein,  

it was observed that taking cognizance is the act  

which  the  Designated  Court  has  to  perform  and  

granting sanction is an act which the sanctioning  

authority  has  to  perform.   In  fact,  taking  of  

cognizance by the Court was subject to the grant of  

sanction  not  for  the  Designated  Court  to  take  

cognizance of an offence, but, for the prosecuting  

agency to approach the Court concerned to enable it  

to take cognizance of the offence and to proceed to  

trial against the persons indicated in the report.  

In other words, a valid sanction is the  sine qua  

non for enabling the prosecuting agency to approach  

the Court in order to enable it to take cognizance  

of the offence as disclosed.     

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22. Appearing for Rasiklal Manikchand Dhariwal, Mr.  

R.F.  Nariman,  learned  Senior  counsel,  submitted  

that the provisions of MCOCA had to be read as a  

whole since it was the intention of the legislature  

to minimise the application of the Code in respect  

of matters covered by MCOCA.  He, however, disputed  

the  submissions  made  both  on  behalf  of  the  

appellant as also the respondents that the Special  

Judge combined magisterial functions with that of  

the Court of Session.  According to him, Section  

9(1)  of  the  Act  merely  eliminates  the  committal  

process  and  allows  the  Special  Judge  to  take  

cognizance of the offence complained of directly.  

Mr.  Nariman,  however,  adopted  the  submissions  

advanced by Mr. Sushil Kumar as to the control of  

Section  23(2)  of  MCOCA  over  Section  9(1)  where  

cognizance was required to be taken either on a  

private complaint or on a police report.  Drawing a  

parallel  with  provisions  in  the  Prevention  of  

23

Terrorism  Activities  Act,  2002  (POTA),  the  

Terrorist  and  Disruptive  Activities  (Prevention)  

Act, 1987 (TADA) and the provisions of MCOCA, Mr.  

Nariman submitted that the provisions of Sections  

29  and  50  of  POTA  were  in  pari  materia with  

Sections 9 and 23 of MCOCA and Section 14(1) of  

TADA was the same as Section 9(1) of MCOCA and none  

of the said provisions contemplated the invocation  

of the provisions of Section 156(3) Cr.P.C. by the  

learned Special Judge.  Learned counsel submitted  

that  the  majority  view  of  the  Full  Bench  that  

Sections  9  and  23  of  MCOCA  were  completely  

independent  of  each  other  suffered  from  the  

cardinal error of failure to read the statute as a  

whole before applying the provisions of MCOCA to  

the  facts  of  this  case.  He  submitted  that  the  

majority view of the Full Bench that Section 9(1)  

of MCOCA was not controlled by any provision of the  

said Act, much less Section 23, was not acceptable  

as otherwise by taking recourse to Section 9(1) of  

24

MCOCA, any private individual could circumvent the  

rigours  imposed  under  Sections  23(1)  and  (2)  of  

MCOCA, which would completely defeat the object of  

the said Act.  Reference was made by Mr. Nariman to  

the decisions of this Court in (1) Nelson Motis Vs.  

Union  of  India  &  Anr. [(1992)  4  SCC  711]  and  

several  other  decisions  in  support  of  his  

submission  regarding  Harmonious  Construction  and  

urged  that  in  construing  the  provisions  of  the  

several  enactments  dealing  with  terrorist  and  

disruptive  activities,  a  purposeful  construction  

has to be adopted in order to promote the object of  

the Act and to prevent possible abuse thereof.   

23.  Mr. M.S. Ganesh, learned Senior counsel, who  

appeared for Shri G.M. Joshi, the other respondent  

against whom a private complaint had been filed,  

contended that it would not be correct to say that  

the  provisions  of  the  Code  would  not  apply  to  

proceedings under MCOCA.  He, however, submitted  

that  the  provisions  of  Section  23(1)  requiring  

25

prior approval for recording an information and the  

provisions  of  Section  23(2)  of  MCOCA  requiring  

previous sanction for prosecution clearly indicates  

that the said provisions are mandatory and if not  

complied with, the investigation and/or prosecution  

would be rendered invalid.  Mr. Ganesh urged that  

Section  23(2)  is  a  threshold  provision  having  a  

direct bearing to the jurisdiction of the Special  

Court  to  take  cognizance  under  Section  9(1)  of  

MCOCA.  Referring to the celebrated decision of the  

Privy Council in Nazir Ahmad Vs. King Emperor [AIR  

1936  PC  253],  Mr.  Ganesh  submitted  that  when  a  

power had been given to do a certain thing in a  

certain way, it would have to be done in that way  

or  not  at  all.   Submitting  that  there  was  a  

difference between the expression “permission” and  

“prior permission”, Mr. Ganesh contended that while  

the former did not prevent  ex facto sanction for  

investigation or taking cognizance, the latter was  

mandatory  in  nature  and  without  such  prior  

26

permission,  no  cognizance  could  be  taken  of  any  

offence under MCOCA.  In this regard, reference was  

made to the decision of this Court in (i) LIC Vs.  

Escorts Ltd. & Ors. [(1986) 1 SCC 264]; and (ii)  

Mansukhlal Vs. State of Gujarat [1997) 7 SCC 622],  

which were both on the same lines.   

24. Mr.  Ravindra  Srivastava,  learned  senior  

counsel, appearing for the appellant in Criminal  

Appeal  No.1085  of  2005,  while  accepting  the  

submissions advanced by Mr. Sushil Kumar, Mr. R.F.  

Nariman  and  Mr.  M.S.  Ganesh  and  holding  that  

private complaints were maintainable under Section  

9  of  MCOCA,  submitted  further  that  the  said  

provision  was  an  enabling  provision,  which  was  

controlled by Section 23 which is a repository of  

the  safeguards  against  false  and  malicious  

prosecution.  Referring to the stringent nature of  

MCOCA  and  the  existing  safeguards  introduced  in  

Section 23 thereof, Mr. Srivastava referred to the  

decision of this Court in  State of Maharashtra &  

27

Ors. Vs. Lalit Somdatta Nagpal & Anr. [(2007) 4 SCC  

171], where the importance of the requirement for  

grant of sanction had been considered and it was  

observed that in taking recourse to the provisions  

of MCOCA which has the effect of curtailing the  

liberty of an individual, a great responsibility  

had been cast on the authorities to ensure that the  

provisions of the Act are strictly adhered to and  

followed.

25. Mr. Srivastava also referred to the decision in  

A.R.  Antulay Vs.  Ramdas  Sriniwas  Nayak  &  Anr.  

[(1984)  2  SCC  500],  wherein  the  safeguards  with  

regard to taking cognizance on private complaints  

under  Section  8  of  the  Prevention  of  Corruption  

Act, 1947, in respect of offences under Section 6  

introduced by way of Section 5A by the Criminal Law  

Amendment  Act,  1952,  was  considered  and  it  was  

observed that the said amendment was necessary to  

prevent  any  abuse  by  way  of  private  complaints.  

Mr.  Srivastava  urged  that  there  is  no  conflict  

28

between Sections 9 and 23 of MCOCA and both have to  

be read in a holistic manner and in the context of  

the Special Act to allow both of them to have play  

in the joints.    

26. On  behalf  of  the  Respondent  No.2,  Nitindra  

Singh, in Criminal Appeal No.1089 of 2006, Mr. Amit  

Sharma,  learned  counsel,  submitted  that  the  

questions which were required to be decided in this  

case  were  mainly  confined  to  the  following  two  

questions :

(i) Does the Special Court have original  jurisdiction  of  magisterial  powers  under MCOCA?

(ii) Whether  Section  23  of  MCOCA  is  a  condition precedent for the Special  Judge  to  invoke  the  provisions  of  Section 9(1) of the said Act, both  with regard to private complaints as  well as police reports?  In other  words,  the  question  is  whether  sanction  is  required  to  be  taken  under Section 23(2) before a private  

29

complaint  could  be  filed  under  MCOCA?    

27. Answering  the  first  question  in  the  

affirmative, Mr. Sharma submitted that the Special  

Court combines in itself both magisterial functions  

as well as Session Court, but at different stages.  

He submitted that while at the stage of cognizance  

the Special Judge exercises magisterial powers, at  

the stage of trial he exercises all the powers of a  

Court of Session as provided under Section 9(4) of  

the Act.

28. Regarding  the  second  question,  Mr.  Sharma  

submitted that Section 23 of MCOCA governed Section  

9(1) only with regard to police reports, but not in  

respect of private complaints and consequently the  

provisions of the Code would become operative in  

respect of a private complaint and Section 9(1) of  

MCOCA would, therefore, be independent of Section  

23(2) when a private complaint was made. He also  

pointed  out  that  Section  24  of  MCOCA  was  an  

30

additional safeguard as it provides for punishment  

of  a  public  servant  who  fails  or  abstains  from  

taking lawful measures under the Act.

29. In support of his aforesaid submissions, Mr.  

Sharma,  while  referring  to  the  decision  in  A.R.  

Antulay’s case (supra) referred to various other  

decisions of this Court which only have repetitive  

value. Mr. Sharma submitted that the view taken by  

the Full Bench was correct and did not require any  

interference.   

30. Mr.  E.C.  Agrawala,  who  appeared  for  Abdul  

Razzak Zariwala, a respondent in Criminal Appeal  

No.1088 of 2006, adopted the submissions made by  

Mr. Amit Sharma.  

31. Ms. Aishwarya Bhati, learned counsel appearing  

for  the  sole  respondent,  Ketan  Pirodkar,  in  

Criminal Appeal No.1089 of 2006, who was also one  

of the complainants, while generally agreeing with  

the submissions made by Mr. Lalit, Mr. Sushil Kumar  

31

and Mr. Srivastava, contended that the provisions  

of  Section  23  of  MCOCA  have  to  be  given  a  

harmonious construction in relation to Section 9(1)  

in  order  to  avoid  a  collusion  between  the  

apparently contrary provisions.   She urged that if  

sanction under Section 23(2) is held to be a sine  

qua non  for a private complaint, it would render  

Section 9(1) redundant and completely frustrate the  

remedy of a private complaint before the Special  

Court.   She  urged  further  that  since  a  private  

complaint  could  be  filed  directly  under  Section  

9(1), the legislature intended that in such case  

the  provisions  of  Section  23(2)  will  not  be  

applicable.  However, if further investigation was  

required into such private complaint, the Special  

Judge could order such an investigation, subject to  

the safeguards provided in Section 23(1) of MCOCA.  

32. Ms. Bhati then referred to Section 4 Cr.P.C.  

and submitted that all offences under the Indian  

Penal Code have to be investigated, inquired into,  

32

tried  and  otherwise  dealt  with  according  to  the  

provisions of the Criminal Procedure Code and all  

offences under any other law are to be dealt with  

according to the same provision, but subject to any  

enactment for the time being in force regulating  

the  place  of  investigation  and  trial.  In  this  

regard, Ms. Bhati referred to the decisions of this  

Court in  Moti Lal Vs.  CBI & Anr. [(2002) 4 SCC  

713], where the question involved was whether the  

CBI  was  authorized  to  investigate  an  offence  

punishable under the Wild Life (Protection) Act,  

1972,  in  view  of  the  argument  that  the  said  

enactment was a self-contained Code.  Answering the  

said question, this Court held that the provisions  

of  the  Criminal  Procedure  Code  would  apply  in  

respect of investigation and trial even in respect  

of such enactments, but would be subject to any  

provision  regulating  the  manner  of  such  

investigation and  trial.  Ms. Bhati urged that  

consequently, the provisions of the Cr. P.C. would  

33

apply  with  full  force  in  all  aspects  of  

investigation,  enquiry  and  trial,  except  where  

there is a specific provision to the contrary in  

the Special Act, such as MCOCA.

33. Ms.  Bhati  submitted  that  if  sanction  under  

Section 23(2) was held to be a  sine qua non for  

private  complaint  also,  the  object  of  Section  9  

would be completely frustrated and would lead to  

startling results and that complaint of a private  

party  would  become  the  subject  of  police  

investigation.   

34. Mr.  Harish  Salve,  learned  senior  counsel,  

appearing  for  the  Union  of  India,  added  a  new  

dimension to the submissions made on behalf of the  

respective parties by contending that, in fact, no  

private complaint would lie under Section 9(1) of  

MCOCA and that such private complaints will have to  

be made under Section 190 Cr.P.C.  He urged that  

since Section 9(1) was subject to compliance with  

34

the  provisions  of  Section  23(2),  the  said  

provisions  did  not  contemplate  the  filing  of  a  

private  complaint  and  the  provisions  of  Section  

190(1)(c) Cr.P.C. stood excluded.  

35. We  have  carefully  considered  the  submissions  

made on behalf of the respective parties and we are  

convinced that Section 9 of MCOCA cannot be read or  

invoked independent of Section 23.  In our view,  

Section 9(1) contemplates filing of complaints both  

by  the  investigating  authorities  and  also  by  

private parties and the learned Special Judge is,  

therefore, entitled to take cognizance of offences  

under MCOCA even on a private complaint, but after  

due compliance with Section 23(2) thereof.  In view  

of  the  stringent  provisions  of  MCOCA,  the  

Legislature  included  certain  safeguards  for  

invoking  the  provisions  thereof.   The  same  is  

manifest from the provisions of Section 23 as a  

whole.  In order to understand and appreciate the  

provisions of Sections 9 and 23 and the inter-play  

35

between them, Sub-Sections (1) and (4) of Section  

9, which are relevant to the submissions made in  

these appeals, are reproduced hereinbelow :-

“9.    Procedure  and  powers  of  Special  Court :- (1) A Special Court may take congnizance  

of  any  offence  without  the  accused  being committed to it for trial upon  receiving a complaint of facts which  constitute  such  offence  or  upon  a  police report of such facts.

(2) xxx xxx xxx

(3) xxx xxx xxx

(4) Subject  to  other  provisions  of  this  Act, a Special Court shall, for the  purpose of trial of any offence, have  all the powers of a Court of Session  and shall try such offence as if it  were a Court of Session, so far as may  be, in accordance with the procedure  prescribed in the Code for the trial  before a Court of Session.”

36. The expression used in Section 9(1) indicates  

that the Special Court may take cognizance of any  

offence without the accused being committed to it  

for trial, either on receiving a complaint of facts  

36

or  upon  a  police  report  of  such  facts,  which  

clearly indicates that the Special Court is also  

empowered to take cognizance of an offence under  

MCOCA even on a private complaint.  The said power  

vested in the learned Special Judge is, however,  

controlled by the provisions of Section 23(2) of  

the Act, which provides that no Special Court shall  

take  cognizance  of  any  offence  under  the  Act  

without the previous sanction of a Police Officer  

not below the rank of Additional Director General  

of Police.

37. For the sake of reference, the provisions of  

Section 23 are extracted hereinbelow.

“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  

37

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  precious,  sanction  of  the  police  officer  not  below  the  rank  of  Additional Director General of Police.”  

38. The wording of Sub-Section (2) of Section 23  

leaves no room for doubt that the learned Special  

Judge cannot take cognizance of any offence under  

MCOCA unless sanction has been previously given by  

the police officer mentioned hereinabove.  In such  

a situation, even as far as a private complaint is  

concerned,  sanction  has  to  be  obtained  from  the  

Police  Officer  not  below  the  rank  of  Additional  

Director  General  of  Police,  before  the  Special  

Judge  can  take  cognizance  of  such  complaint.  

Accordingly, the provisions of Section 9(1) will  

have to be read in harmony with the provisions of  

Section  23(2)  as  far  as  private  complaints  are  

concerned, and we have no hesitation in negating  

38

the  majority  view  of  the  Full  Bench  holding  

otherwise.   

39. We are also inclined to hold that in view of  

the  provisions  of  Section  25  of  MCOCA,  the  

provisions of the said Act would have an overriding  

effect  over  the  provisions  of  the  Criminal  

Procedure Code and the learned Special Judge would  

not,  therefore,  be  entitled  to  invoke  the  

provisions of Section 156(3) Cr.P.C. for ordering a  

special inquiry on a private complaint and taking  

cognizance thereupon, without traversing the route  

indicated in Section 23 of MCOCA.  In other words,  

even on a private complaint about the commission of  

an  offence  of  organized  crime  under  MCOCA  

cognizance  cannot  be  taken  by  the  Special  Judge  

without  due  compliance  with  Sub-Section  (1)  of  

Section  23,  which  starts  with  a  non-obstante  

clause.  As indicated hereinabove, the provisions  

of Section 23 are the safeguards provided against  

the invocation of the provisions of the Act which  

39

are extremely stringent and far removed from the  

provisions of the general criminal law.  If, as  

submitted on behalf of some of the respondents, it  

is accepted that a private complaint under Section  

9(1) is not subject to the rigours of Section 23,  

then  the  very  purpose  of  introducing  such  

safeguards lose their very raison d’etre.  At the  

same time, since the filing of a private complaint  

is also contemplated under Section 9(1) of MCOCA,  

for it to be entertained it has also to be subject  

to the rigours of Section 23.   

40. Accordingly, in view of the bar imposed under  

Sub-Section  (2)  of  Section  23  of  the  Act,  the  

learned  Special  Judge  is  precluded  from  taking  

cognizance on a private complaint upon a separate  

inquiry under Section 156(3) Cr.P.C.  The bar of  

Section  23(2)  continues  to  remain  in  respect  of  

complaints,  either  of  a  private  nature  or  on  a  

police  report.   In  order  to  give  a  harmonious  

construction to the provisions of Section 9(1) and  

40

Section 23 of MCOCA, upon receipt of such private  

complaint the learned Special Judge has to forward  

the same to the officer indicated in Clause (a) of  

Sub-Section (1) of Section 23 to have an inquiry  

conducted into the complaint by a police officer  

indicated in clause (b) of Sub-Section (1) and only  

thereafter  take  cognizance  of  the  offence  

complained  of,  if  sanction  is  accorded  to  the  

Special Court to take cognizance of such offence  

under Sub-Section (2) of Section 23.

41.   In substance, we agree with the minority view  

of the Full Bench, which, in our opinion, correctly  

interprets the inter-play between Sections 9, 23  

and 25 of MCOCA.   

42. We, therefore, allow Criminal Appeal No.1089 of  

2006  filed  by  the  State  of  Maharashtra  and  set  

aside the majority decision of the Full Bench in  

the judgment impugned, together with the directions  

issued thereupon.  Instead, we endorse the minority  

41

view of the acting Chief Justice and accept the  

conclusions  arrived  at  by  His  Lordship  and  the  

directions given thereupon.

43. As far as the appeal preferred by Jamiruddin  

Ansari is concerned, the trial has not progressed  

on account of the stay orders passed by this Court  

on the appeals filed by the State of Maharashtra  

against  the  decision  of  the  Full  Bench  on  the  

reference made on the conflicting views expressed  

by different Benches of the High Court with regard  

to  the  interpretations  of  Sections  9  and  23  of  

MCOCA.  Except for the fact that the appellant has  

undergone  a  further  period  in  custody,  there  is  

really no change in the circumstances under which  

his  initial  bail  application  was  rejected.   We,  

therefore, see no reason to entertain the appeal  

filed by him and the same is dismissed.

44. Criminal Appeal No.1085 of 2006 filed by Ashok  

son of Gyanchand Vohra and Criminal Appeal No.1088  

42

of  2006  filed  by  Shabbir  Noormohamed  Patel  will  

also stand disposed of along with the appeals filed  

by the State of Maharashtra in the same vein.

45. The appeals filed by the State of Maharashtra  

in  respect  of  the  writ  petitions  filed  by  Shri  

Rasiklal  Manikchand  Dhariwal  and  G.M.  Joshi  are  

delinked  from  the  other  appeals  and  disposed  of  

with a direction to the High Court to dispose of  

their writ petitions expeditiously.  Let the lower  

court records in respect of their matters be sent  

back to the High Court forthwith.

________________J. (ALTAMAS KABIR)

________________J. (CYRIAC JOSEPH)

New Delhi Dated: 06.05.2009

43