Criminal Writ Petition No.1956 of 2005,WITH Criminal Writ Petition No.2016 of 2005

8th December, 2010

Petitioner Counsel: Mr. SUSHIL KUMAR, Mr. S. K. JAIN, Mr. HITESH JAIN, Ms. ADITYA KUMAR, Mr. SUBHASH JADHAV, Mr. SHIRISH GUPTE, Mr. GANESH GOLE, Mr. JAIMINI SHAH
Respondent Counsel: Mr. DARIUS KHAMBATTA, Mr. RAJA THAKARE, Ms. REVATI MOHITE-DERE, Mr. AFROZ SHAH

Cases Cited:
Kalpanathrai Vs. State through CBI, 1998 SCC (Cri.) 134 [Para 2]
N. Natarajan Vs. B. K. Subharao, 2003(1) Crimes 235 [Para 2]
Rambhai Nathabhai Gadhvi Vs. State of Gujarat, (1997)7 SCC 744 [Para 2,16]
John D'Souza Vs. Assistant Commissioner of Police, 2007 ALL MR (Cri) 2899=Manu/MH/0797/2007 [Para 5]
Pradip Madgaonkar @ Bandya Mama Vs. State of Maharashtra, 2006 ALL MR (Cri) 3496 [Para 6]
Vinod G. Asrani Vs. State of Maharashtra, 2007 ALL MR (Cri) 832 (S.C.)=AIR 2007 SC 1253 [Para 7]
Ahmed Umar Saeed Sheikh Vs. State of U.P., (1996)11 SCC 61 [Para 8]
State of Maharashtra Vs. Lalit Somdatta Nagpal, 2007 ALL SCR 1078 : (2007)4 SCC 171 [Para 11]
Mukhtiar Ahmed Ansari Vs. State (N.C.T. of Delhi), 2005 ALL MR (Cri) 1775 (S.C.)=(2005)5 SCC 258 [Para 12]
Jamiruddin Ansari Vs. CBI, 2009 ALL MR (Cri) 2790 (S.C.)=(2009)6 SCC 316 [Para 14]
Anjani Kumar Vs. State of Bihar, 2008 ALL SCR 1646 : (2008)5 SCC 248 [Para 15]
Harpal Singh Vs. State of Punjab, 2008 ALL SCR 616 : (2007)13 SCC 387 [Para 16]
Dilawar Singh Vs. Parvinder Singh @ Iqbal Singh, 2006 ALL MR (Cri) 278 (S.C.)=(2005)12 SCC 709 [Para 16]
AIR (38) 1951 SC 207 [Para 16]
Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, (1997)7 SCC 622 [Para 16]
Ranjitsingh B. Sharma Vs. State of Maharashtra, 2005(5) SCC 294 [Para 16]
Madan R. Gangwani Vs. State of Maharashtra, 2009 ALL MR (Cri) 1447 [Para 16]
Anil Sadashiv Nandurkar Vs. State of Maharashtra [Para 16]
R. R. Chari Vs. State of Uttar Pradesh, AIR 1951 SC 207 [Para 16]
A. C. Sharma Vs. Delhi Administration, AIR 1973 SC 913 [Para 24]

JUDGMENT

A. M. KHANWILKAR, J.:- Both these Petitions can be conveniently disposed of together, as the questions raised in the respective Petitions are common.

2. Shorn of details, the facts which have given rise to filing of the above two Writ Petitions by Rasiklal Manikchand Dhariwal (hereinafter referred to as 'RMD' for the sake of brevity) and Jagdish M. Joshi (hereinafter referred to as 'JMJ' for the sake of brevity), can be set out as under :

(a) The Petitioners have rushed to this Court essentially on account of order, passed by the Special Court constituted under the Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred to as the 'MCOC Act') for Greater Mumbai, dated 26th July, 2005, in Special Case No.1/2005; and also because of non-bailable warrants issued against them in connection with the said case i.e. DCB CID CR No.152/2004. The Petitioner RMD asserts that he is the Chairman of M/s. Dhariwal Industrial Limited, having its registered office at Pune. The said Dhariwal Industries is part of Manikchand Group Industries, which is interalia engaged in the business of Gutka, Panmasala, Bidi, Electrical Accessories, Lamination, Packaging, Mineral Water, etc. for the last 40 years. Whereas, Petitioner-JMJ asserts that he is the Master Blender of Perfumes and Fragrances and holds registered Patent for Mouth Freshener preparation issued by the Government of India. According to him, besides India, he has business establishments carrying manufacturing and blending of Perfumes and Mouth Fresheners' preparation in U.A.E., Singapore and Indonesia.

(b) Both these Petitioners assert that they are not even remotely connected with the criminal case originally registered for offence punishable under the provisions of Sections 3 and 25 of the Arms Act and Sections 120-B, 384, 387 r/w. 34 of the Indian Penal Code (hereinafter referred to as the 'I.P.C.') against one Jamiruddin @ Jumbo @ Kalya Gulam Rasul Ansari and three others.

(c) The said F.I.R. was registered on 27th September, 2004 as LAC Case being CR No.122/2004. The accused No.1 Jamiruddin came to be arrested on 10th October, 2004 followed by another accused namely one Rajesh @ Rajubhai Laxminarayan Panchariya. During the interrogation, the arrested accused allegedly referred to some transaction in Dubai involving both the Petitioners before this Court. It is the case of the Petitioners that they had no connection with the said transaction, in particular, the case under investigation.

(d) During the course of investigation of the said case on the basis of material which became available to the Investigating Officer, it was decided to proceed against the named accused persons also for offence under MCOC Act. Accordingly, prior approval of the Joint Commissioner of Police (Crime), Mumbai under Section 23(1)(a) of the MCOC Act was obtained. The said Authority recorded satisfaction that there was sufficient material to disclose that offence of organized crime has been committed by the members of the organized crime syndicate as defined in Section 2 of MCOC Act.

(e) Being satisfied, the said Authority granted prior approval for applying the provisions of Section 3 of the MCOC Act against the named accused persons along with Sections 120-B, 384, 387 and 34 of the I.P.C. r/w. Section 25 of the Arms Act. The said approval order dated 21st October, 2004 reads thus :

“No.58:/Jt.C.P.(Crime)/U-IX/2004 Office of the Jt. Commissioner of Police (Crime), Brihan Mumbai. Date : 21st October, 2004. O R D E R PRIOR APPROVAL UNDER SECTION 23(1)(a) OF MAHARASHTRA CONTROL OF ORGANISED CRIME ACT, 1999
Reference :	Proposal submitted by Asst. Commissioner of Police of (D- 1/N-W), Crime Branch, Mumbai seeking prior approval under section 23(1)(a) of Maharashtra Control of Organised Crime Act, 1999, for applying section 3 of M.C.O.C. Act, 1999.
I have perused the proposal submitted by A.C.P. Shri. Suresh Walishetty, Asst. Commissioner of Police (D-1/N-W), Crime Branch, Mumbai through the Dy.Commissioner of Police (Detention), Mumbai about the involvement of (1) Anis Ibrahim Kaskar, (2) Mohammed Farukh Mansuri, (3) Jamiruddin @ Jambo @ Kalya Gulam Rasul Ansari and (4) Rajesh Laxminarayan Panchariya, seeking prior approval as required under section 23(1)(a) of M.C.O.C. Act, 1999, for applying section 3 of the M.C.O.C. Act, 1999 to DCB CID C.R. No.122/2004 (J.J. Marg Police Station C.R. No.249/2004) u/s.120(b), IPC r/w. 384, 387, 34, IPC r/w. 3, 25, Arms Act.            On going through the papers and reports placed before me, I am satisfied that Jamiruddin @ Jambo @ Kalya Gulam Rasul Ansari and Rajesh Laxminarayan Panchariya are in touch with Anis Ibrahim Kaskar through the mobile phones used by them and the documentary evidence gathered so far, shows that they are active members of Organized Crime Syndicate of Anis Ibrahim Kaskar, a faction of Dawood Ibrahim Gang. It also appears that Mohammed Farukh Mansuri is also instrumental in transferring the machines from Dubai to Karachi. From the interrogation and recorded statements of Jamiruddin @ Jambo @ Kalya Gulam Rasul Ansari and Rajesh Laxminarayan Panchariya in DCB CID C.R. No.122/2004 (J.J. Marg Police Station C.R. No.249/2004) u/s.120(b), IPC r/w. 384, 387, 34, IPC r/w. 3, 25 Arms Act, it has transpired that they are active members of the Organized Crime Syndicate of Anis Ibrahim Kaskar. The arrested accused Jamiruddin @ Jumbo @ Kalya Gulam Rasul Mansuri assisted the Organized Crime Syndicate by arranging the export of 5 machines used for Gutka packing worth of Rs.2,64,000/- obtained by way of extortion by putting the complainant in fear of death. The said machines were manufactured by Rajesh @ Rajubhai Laxminarayan Panchariya and were delivered to Dubai from where the said machines were cleared for onward delivery to Karachi by other active associates of Anis Ibrahim Kaskar namely Farukh Mansuri. Few months back i.e. in the month of July-2004 the said accused persons again delivered spare parts of Gutka Filling .... Pouch Packing Machine to Anis Ibrahim Kaskar.           From the evidence on record, I am satisfied that there is sufficient evidence to prove continuous unlawful activities of the organized crime syndicate headed by gangster Anis. I am personally satisfied that this offence amounts to as Organized Crime committed by the members of Organized Crime Syndicate, as defined in Section 2 of M.C.O.C. Act, 1999.           Therefore, I, Meeran C. Borwankar, IPS, Jt. Commissioner of Police (Crime), Mumbai, in exercise of the powers conferred upon me under section 23(1)(a) of said Act, 1999, hereby grant prior approval for applying the provision of section 3 of Maharashtra Control of Organised Crime Act, 1999 to DCB, CID, Unit-IX C.R. No.122/04, u/s.120(b), IPC r/w. 384, 387, 34, IPC r/w. 3, 25 Arms Act and hereafter appoint Shri. Suresh Walishetty, Asst.Commissioner of Police (D-1/N-W), Crime Branch, Mumbai to investigate the said case.           A.C.P. Shri. Suresh Walishetty should obtain the sanction of the Commissioner of Police, Mumbai before filing charge sheet in the case.
		Sd/- (Meeran C. Borwankar) Jt. Commissioner of Police (Crime), Mumbai.” (emphasis supplied)
(f) Consequent to the said approval, after registration of offence against the named accused persons, investigation was proceeded also for offence punishable under Section 3 of the MCOC Act.           (g) Significantly, neither in the F.I.R. nor the prior approval granted by the Appropriate Authority, any reference is found to the involvement of the Petitioners before this Court in connection with the said offence. Notwithstanding the same, the Investigating Officer in the course of the investigation of the offence as registered, wanted the Petitioners to appear before him.           (h) The Petitioners conveyed their inability to appear before the Investigating Officer on the specified dates on the ground that they were out of India in connection with their business activities. It is the case of the Petitioners that they, however, gave assurance to the Investigating Officer that as and when they would return to India, would appear before him.           (i) However, the Investigating Officer precipitated the matter by moving Application before the Special Court for issuance of non-bailable warrant against the Petitioners herein on the ground that they were not co-operating with the investigation of the offence in question. It is on that Application, the Special Court, proceeded to issue non-bailable warrants against both the Petitioners herein.           (j) As soon as the Petitioners learnt about issuance of non-bailable warrants against them, they moved applications before the Special Court for cancellation of non-bailable warrants on the grounds stated in their Applications. The said Applications filed by the Petitioners herein, however, came to be rejected by the Special Court on 1st February, 2005.           (k) In the meantime, the Investigating Officer after obtaining sanction from the Appropriate Authority as required under Section 23(2) of the MCOC Act, proceeded to file charge-sheet against the named accused on 24th January, 2005. The sanction was accorded by the Commissioner of Police, Brihan Mumbai on 21st January, 2005, which reads thus:
“No.01/CP/PA/MCOC/2005 Office of the Commissioner of Police, Brihan Mumbai-400 001. Date - 21/01/2005 ORDER Sanction U/s.23(2) of Maharashtra Control of Organised Crime Act, 1999.
REFERENCE :	Report of A.C.P., D-1/N- W, Crime Branch, CID, Mumbai dated 17/01/2005 submitted through D.C.P. (Detention) and Jt. Commissioner of Police (Crime), Mumbai.
READ :	Papers of investigation of DCB CID C.R. No.122/ 2004, U/sec.120(B) r/w. 384, 387, 34, I.P.C. r/w. 3(1)(ii), 3(2), 3(4) of MCOC Act, 1999.
WHEREAS, the Investigation Officer in the above mentioned case, Suresh Walishetty, Assistant Commissioner of Police, D-1/N-W, CB CID, Mumbai has submitted his report dated 17/01/2005 along with the papers of investigation in DCB CID C.R. No.122/2004, U/sec.120(B) r/w 384, 387, 34 I.P.C. r/w. 3(1)(ii), 3(2), 3(4) of MCOC Act, 1999 through the D.C.P. (Detection) and Jt.Commissioner of Police (Crime), Mumbai for according sanction to prosecute the accused persons as required under section 23(2) of MCOC Act, 1999.           2. AND WHEREAS, the prior approval of the Jt. Commissioner of Police (Crime), Mumbai was obtained vide No.591/2004 dated 21/10/2004 for applying the provisions of MCOC Act, 1999 to DCB, CID, C.R. No.122/2004.           3. AND WHEREAS, I A.N.Roy, Commissioner of Police, Brihan Mumbai and in the rank of Addl.Director General of Police have gone through the report and on perusal of the statements of the witnesses, other papers of investigation and reports enclosed with the proposal under reference.           4. AND WHEREAS, on going through the case papers, statements and reports placed before me, I am satisfied that prima facie case is made out against the accused persons for being tried for the offences of the India Penal Code mentioned above and under section 3 of MCOC Act.           5. AND WHEREAS, I find that in the year 2002 arrested accused by name Jamiruddin @ Jumbo @ Kalya Gulam Rasul Ansari and Rajesh @ Rajubhai Laxminarayan Panchariya assisted the organized crime syndicate headed by Anis Ibrahim Kaskar by arranging the export of five machines used for Gutka packing, worth of Rs.2,64,000/- obtained by way of extortion by putting the complainant in fear of death. Thus they have jointly committed in organized crime on behalf of members of organized crime syndicate headed by Anis Ibrahim Kaskar.           6. AND WHEREAS, I am satisfied that there is sufficient evidence to prove continuous unlawful activities of the organized crime syndicate headed by accused Anis Ibrahim Kaskar and his associates, and more than one charge sheets have been filed before a Competent Court within last 10 years and the Court has taken cognizance of charge sheets against Anis Ibrahim Kaskar and his associates.           7. NOW, THEREFORE, I, A.N. Roy, Commissioner of Police, Brihan Mumbai in the rank of Addl.Director General of Police, in exercise of powers conferred upon me by sub-section 2 of section 23 of MCOC Act, 1999, do hereby accord sanction for the prosecution of the 2 arrested accused namely (1) Jamiruddin @ Jumbo @ Kalya Gulam Rasul Ansari, aged 37 yrs, R/o.002, Maqdoom Sea Palace, Ground Floor, B Wing, Kaidal Road, Lane Opp.Jain Mandir, Mahim, Mumbai and (2) Rajesh @ Rajubhai Laxminarayan Panchariya, aged 33 yrs., R/o.B-3/202, Vikas Complex, Castle Mill Compound, Dist.-Thane and 2 wanted accused (1) Anis Ibrahim Kaskar, (2) Mohd. Farukh Mohd Yasin Mansuri, for the respective offences under section 3 of MCOC Act, 1999 for taking cognizance by the Hon’ble Designated Court, Mumbai constituted for trying such offence under Maharashtra Control of Organized Crime Act, 1999.            Given under my signature and seal on this 21st day of January 2005.
		Sd/- (A. N. Roy) Commissioner of Police, Brihan Mumbai.”
(l) According to the Petitioners, the involvement of the Petitioners herein is not disclosed either in the F.I.R. as registered nor in the prior approval granted under Section 23(1)(a) of MCOC Act or for that matter, sanction accorded by the Authority under Section 23(2) of the MCOC Act. Moreover, even in the charge-sheet filed before the Special Court, there is nothing to indicate that the Petitioners herein were connected with the commission of offence referred to in the said charge-sheet. Inspite of that, the matter was pursued against the Petitioners herein with respect to the said offence.           (m) The further investigation of the alleged offence was entrusted to CBI consequent to Notification issued by the Under Secretary to the Government of India on 9th February 2005. The said Notification reads thus :
“228/17/2005-AVD.II GOVERNMENT OF INDIA MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS (DEPARTMENT OF PERSONNEL AND TRAINING) NEW DELHI ******** Dated February 9, 2005 NOTIFICATION            S.O. ...................................... In exercise of the powers conferred by sub-section (1) of section 5 read with section 6 of the Delhi Special Police Establishment Act 1946 (Act No.25 of 1946), the Central Government with the consent of the State Government of Maharashtra communicated vide Letter No.‘CRM/2005/4/POL-11 dt.Jan. 11, 2005’, hereby extends the powers and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Maharashtra for further investigation of case number 249/2004 of J.J. Marg Police Station, Mumbai, Maharashtra under section 120-B of IPC read with sections 384, 387 and 34 of IPC and sections 3 and 25 of the Arms Act read with Sections 3(1)(ii), 3(2) and 3(4) of the Maharashtra Control of Organized Crime Act 1999 relating to nexus between ‘gutka’ manufacturers and the underworld, and attempts, abetments, conspiracies in relation to, or in connection with the said offences, and any other offences committed in the course of the same transaction or arising out of the same facts.
		Sd/- (Shubha Thakur) Under-Secretary to the Government of India
To; The Manager, Government of India Press, Mayapuri, Ring Road, New Delhi-110 064.
No.228/17/2005-AVD.II		Dt.February 9, 2005
Copy to : 1. The Chief Secretary, Government of Maharashtra, Mumbai. 2. Principal Home Secretary, Government of Maharashtra, Mumbai. 3. Director, CBI, CGO Complex, Lodhi Road, New Delhi. 4. DIG, SCR-III, VII Floor, NDMC Building, Chanakyapuri, New Delhi. 5. Directorate of Prosecution, CBI, CGO Complex, Lodhi Road, New Delhi.
		Sd/- (Shubha Thakur) Under-Secretary to the Government of India.”
(n) The Petitioners being dissatisfied with the order of issuance of non-bailable warrants against them, filed Writ Petitions before this Court.           (o) Insofar as Writ Petition filed to espouse the cause of RMD being Criminal Writ Petition No.421 of 2005 is concerned, the same came to be dismissed on 22nd February, 2005. Against the said decision, RMD carried the matter before the Apex Court by way of SLP (Cri.) 1257/2005. Insofar as Petitioner JMJ is concerned, he chose to appear before the Special Court on 25th February, 2005 after returning to India from his business trip. Insofar as Petitioner RMD is concerned, the Appeal filed by him before the Apex Court eventually came to be disposed of on 11th April, 2005. In the said proceedings, statement was made by the Solicitor General of India that Petitioner-RMD was co-operating with the investigating agency and his statements have been recorded. Further, the Petitioner RMD filed affidavit to the effect that he will make himself available for further questioning by the police as and when required. On that basis, the non-bailable warrant issued against Petitioner-RMD by the Special Court on 31st December, 2004 came to be discharged and the Appeal was disposed of on that basis.           (p) According to the Petitioner-RMD, when the case was listed on 24th June, 2005 before the Special Court, the Special Judge directed the CBI to submit report regarding further investigation against the named accused as also against wanted accused. Thereafter, on 28th June 2005, the Special Judge passed the following order :           “I have seen extracts from crime report uptodate, I think in the interest of justice more time is required to be given to the I.O. particularly considering that Shri. Rasiklal Manikchand Dhariwal and Shri. J. M. Joshi are not readily available to the Investigating Officer for interrogation and co-operation in the investigation, which they had assure. It is expected that the aforesaid persons were granted relief in respect of non bailable warrant issued against them upon condition that they will co-operate with the investigation. If their failure is brought to the notice of the Court, again further appropriate action according to law will have to be taken to bring them before the Court. I.O. prayed for time to file final report hence time is extended till 15/7/2005 for to submit the final report.”           (q) According to the Petitioners; the aforesaid observation of the learned Judge of non-co-operation was erroneous and unwarranted. The same was not consistent with the record. In that, on 15th July, 2005, the Investigating Officer submitted draft Letters of Rogatory and stated that further material evidence in connection with the alleged offence will have to be collected from abroad. On the basis of the said submission of the Investigating Officer, the Special Court on 15th July, 2005, proceeded to observe as follows :
“Dated : 15/07/2005. Spl.P.P. Mr. P. Arun for the CBI present. T.O. present. Accused No. produced from custody. Accused No.2 on bail present.

Heard. Pursuant to noting dated 28/06/2005 the Investigating Officer from the C.B.I. was directed to submit his report so as to be filed till today. Today draft of letter rogatory mark pages 1 to 96 in one file and page nos.1 to 73 in 2nd file along with report about investigation permitted in view of Sec.173(8) of the Cr.P.C. in this case is filed but it appears that the investigating agency is handicapped by the fact that some material evidence in this case will have to be collected from abroad. According to I.O. the proposed accused against whom investigation is pending are co-operating and attending whenever required. If that is so I do not think it necessary at this stage pending the investigation against proposed accused to adopt any coercive process so as to compel their attendance before the court. The investigating officer is seeking issuance of letter rogatories to be processed through the Secretary Ministry of External, Affairs Government of India so as to collect further evidence in this case before supplementary charge sheet can be laid in this case as against proposed accused.

The I.O. as also Ld.Spl.P.P. Are at liberty to apply before this court for issuance of letter rogatories to be processed through Ministry of External Affairs, Government of India. Such applications be regd. As Misc. applications. According to Spl.P.P. the investigating agency has already moved Ministry of External Affairs for to route the letter of rogatories through proper channel. The investigating agency in view of the fact that material evidence will have to be collected from the countries outside India is permitted to carry on further investigation for to submit supplementary report regarding further investigation permitted in view of sec.173(8) of Cr.P.C. It is also expected that the proposed accused shall attend the investigating officer as and when required. In the event of non-co-operation further process for a compel their attendance before the investigating officer and also before this court will be passed. According to I.O. passport of Shri. Jagdish N. Joshi has been surrendered before Sessions Court Satara while Shri. Rasiklal Manikchand Dhariwal has not yet surrendered his passport. Shri. Rasiklal Manikchand Dhariwal be informed to surrender his passport to the investigating officer until further order from this court.

The proposed accused be informed to attend this court of next date of hearing in this case. The investigating agency to expedite the process of investigation so as to submit supplementary charge sheet as early as possible.

The interim report with two files regarding further investigation tendered today be kept in envelop sealed under my signature until further order. Adjd. for reporting compliance as to further investigation and also orders passed by this court. Adjd. to 25/07/2005 to allow C.B.I. to move appropriate application before this court.

(r) According to the Petitioners, the Special Court was acting in excess of jurisdiction in not only having issued non-bailable warrants, but also directed the Petitioners herein to surrender their passports inspite of the fact that there was no material before him which would even remotely disclose the involvement of the Petitioners herein in the commission of the alleged offence. Nevertheless, the Petitioners appeared before the Special Court. To their shock and surprise, the Special Court by a speaking order noted that considering the material collected during the investigation of the case before him, the same discloses illegal acts of commission and omission of the Petitioners herein which may amount to aiding and abetting continuing unlawful activities of the organized crime syndicate of Dawood Ibrahim Kaskar assisted by his brother Noora, Mustkin, Hamid Antulay, etc. operating from Dubai (U.A.E.) and Karachi (Pakistan) through their conduits and henchmen in Mumbai and elsewhere. The Special Judge proceeded to observe that it is the duty of the Court trying the case to proceed against all those persons who appear to have been involved in the offences disclosed in the case but who may have been left over or dropped by the investigating agency. The learned Judge observed that further investigation of the case has already been permitted under Section 173(8) of the Criminal Procedure Code, 1973 (hereinafter referred to as the 'Cr.P.C.') and which was still in progress. Having said this, the Special Judge proceeded to observe that it may be appropriate to summon the persons who may be indictable as additional accused. In his opinion, it was appropriate that such persons were given prior notice and opportunity to make their statements before the Court as to why they should not be named as additional accused. The Special Judge was of the view that it was open to him to take recourse to such measure in view of Section 319 of Cr.P.C. where after, the noticees can be proceeded against in connection with the alleged offence along with the accused already named in the charge-sheet. He further went on to observe that the noticees were free to make statements to explain their position if they so desire and such statements made by them can be recorded as their defence under Section 313 of the Cr.P.C.. The Special Judge has noticed in his order dated 26th July, 2005 that the Petitioners herein had objected to the course of action contemplated by the Special Judge essentially on the ground that previous statutory sanction as contemplated under Section 23(2) of the MCOC Act was not granted against the Petitioners herein (RMD and JMJ). In absence of such sanction, it was not open to the Special Judge to proceed against the Petitioners herein at all. This objection, however, has been overruled by the Special Judge on the finding that prior approval as also sanction to prosecute the already named accused has since been granted by the Appropriate Authority, it is only thereafter the Court had taken cognizance of the case. Further, on the basis of material which has already come on record disclosing the complicity of the Petitioners herein, it was open to the Court trying the case to add the Petitioners as additional accused to be tried along with the named accused. It has opined that it is the Court of law which after judicial scrutiny is satisfied of the materials placed before it that another offence is made out and such satisfaction of the Court is of the highest caliber than the satisfaction of the Sanctioning Authority. To buttress this opinion, reliance is placed on the decision of the Apex Court in the case of Kalpanathrai Vs. State through CBI reported in 1998 SCC (Cri.) 134, wherein, it has been held that once cognizance of the offence under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as 'TADA') has been taken validly by the Designated Court with a proper sanction, the Court is not disabled for convicting the accused for any other offence proved during the trial whether or not the sanction has been accorded in respect of such other offence. Reliance was also placed on another decision in the case of N. Natarajan Vs. B. K. Subharao reported in 2003(1) Crimes 235 which takes the view that any individual can set the machinery of law in motion by lodging complaint of facts constituted in Section 9(1) of the MCOC Act. The Court observed that by implication, it is the duty of the Special Court to take cognizance of any offence without the requirement of committal order after receiving complaints of fact or police reports in respect of facts constituting offence. In substance, the Special Judge went on to observe that even in absence of specific sanction order to prosecute the Petitioners herein under Section 23(2), it would not preclude the Court from proceeding against them if the Court was convinced that the material already on record disclosed the involvement of the Petitioners herein in the commission of the alleged offence. The Special Judge also made reference to the decision of the Apex Court in Rambhai Nathabhai Gadhvi Vs. State of Gujarat reported in (1997)7 SCC 744, which takes the view that taking cognizance is the act which the Special Court has to perform and granting sanction is the act which the Sanctioning Authority has to perform. In the said decision, it has been held that sanction is condition precedent for the investigating agency for valid approach to the Special Court. For which, the same is insisted upon, when the investigating agency were to approach the Court with a charge-sheet. The Special Judge went on to observe that the said restriction may not come in the way of the Court and it was open to the Court to proceed against any person if the material on record discloses the involvement of such person in the commission of the alleged offence. That could be done in exercise of powers under Section 319, Cr.P.C. by the Special Court and even before waiting until the actual beginning of the recording of evidence of the witnesses in the trial. It went on to observe that the expression "evidence" appearing in Section 319 of Cr.P.C. will have to be given wide meaning to include material collected by the Investigating Officer in the course of investigation and produced before the Court along with his report. The Special Judge then proceeded to direct the Special Public Prosecutor to prepare copy of the investigation papers duly truncated in view of the protection given to for the proposed witnesses to be examined in the trial as per Section 19 of the MCOC Act. The Special Judge further directed the Special Public Prosecutor to ensure that the names and addresses of the proposed witnesses shall not be disclosed with a view to protect the identity of the witnesses in the case. Thereafter, the Court directed that the copies of the investigation papers so prepared, shall be accompanied with the statement of the prosecuting agency (CBI) or the State of Maharashtra as to whether prosecution of the accused to be added is also sanctioned as required under Section 23(2) of the MCOC Act and then to supply copies thereof to the accused proposed to be added in the trial of the case before him. In other words, the Special Judge assumed that the Petitioners herein were proposed accused to be tried along with named accused in the pending case. The Petitioners were asked to collect the investigation papers under written acknowledgment. The Special Judge then placed the matter for hearing on 25th August, 2005 for giving opportunity to the Petitioners herein and then to pass appropriate orders as may be necessary.

(s) Being aggrieved by the above said order dated 26th July, 2005, both the Petitioners have invoked the jurisdiction of this Court by way of present Writ Petitions under Articles 226 and 227 of the Constitution of India.

(t) The thrust of the grievance of the Petitioners in the Writ Petitions as originally filed is that the description of the Petitioners as proposed accused was inappropriate and unwarranted, inasmuch as the involvement of the Petitioners herein in the commission of the offence as registered is not even remotely mentioned in the FIR or the prior approval and sanction, or for that matter, the charge-sheet as filed against the named accused. However, the Special Judge assumed that the material on record did disclose the involvement of Petitioners herein in the commission of the alleged offence. Even so, the Petitioners herein have not been named as accused or wanted accused as such at any point of time. If so, no direction could have been issued against the Petitioners herein either by the Investigating Officer or the Court. In absence of any offence registered against the Petitioners herein, neither any investigation against them, much less, for offence punishable under the provisions of MCOC Act was possible. Nor the Court could take cognizance of the offence against them. In any case, the cognizance against the Petitioners could be taken by the Court only after sanction was accorded by the Appropriate Authority as required under Section 23(2) of the Act. It is the case of the Petitioners that the tenor of the order passed by the Special Judge was clearly indicative of the fact that the Special Judge had already decided to arraign the Petitioners as accused in the pending trial without there being any tangible material to disclose the involvement of the Petitioners herein in the commission of the alleged offence and more so, in absence of prior approval under Section 23(1)(a) and sanction under Section 23(2) of the MCOC Act. That the Special Judge has misread and misapplied the decisions of the Apex Court in taking the view that it was open to him to proceed against the Petitioners herein. According to the Petitioners, the Special Judge has acted in excess of jurisdiction and issued directions against the Petitioners without authority of law. The Petitioners have also contended that it was not open to the Special Judge to invoke powers under Section 319 of the Cr.P.C. in the fact situation of the present case. In any case, in absence of sanction accorded by the Appropriate Authority under Section 23(2) of MCOC Act, it was not open to take cognizance of the offence against the Petitioners herein. It is also urged that the operation of the MCOC Act is restricted to the State of Maharashtra. Whereas, the alleged offence by the Petitioners is stated to have been committed outside India. Therefore, the provisions of MCOC Act are not attracted against the Petitioners at all. It is the grievance of the Petitioners that the Special Judge, on his own, has decided to embark upon action against the Petitioners by describing them as proposed accused. According to the Petitioners as recently as on 15th July 2005, the Investigating Officer had informed the Court that the further investigation was still in progress. The Special Judge instead of awaiting the further report of the Investigating Officer, has embarked upon the role of supervising the investigation and to issue direction, which is not permissible in law. It is abuse of process of law. Further, it has resulted in influencing the fairness in further investigation of the case, more so, having recorded prima facie opinion that the material already on record, discloses the involvement of Petitioners herein of having aided and abetted the commission of the alleged offence of continuing unlawful activities of the organized crime syndicate. These are the broad contentions raised on behalf of both the Petitioners in their respective Petitions as originally filed.

(u) Ordinarily, this Court would have been required to essentially address the question regarding the correctness of the view expressed by the Special Judge in his order dated 26th July, 2005. However, in view of the supervening events, the scope of controversy has undergone some change. Inasmuch as, it has now come on record that during the pendency of these Petitions, the Commissioner of Police, Brihan Mumbai has accorded sanction to prosecute both the Petitioners in connection with the alleged offence. That sanction is stated to have been accorded on 21st February, 2006. In view of this development, the primary grievance of the Petitioners with regard to the jurisdiction of the Special Court to proceed against the Petitioners has receded in the background and is of no consequence. In that, if there is a valid sanction to prosecute both the Petitioners before this Court, that would not only permit the Investigating Officer to file further police report/supplementary charge-sheet before the Trial Court for naming the Petitioners herein as additional accused, but also enable the Special Court to take cognizance of offence referred to in the supplementary charge-sheet against the Petitioners herein. In the light of this development, both the Petitioners moved formal applications for amendment of memo of Writ Petitions. That permission has already been granted to the Petitioners on the basis of which, the Petitioners carried out amendment in the original Petitions to urge additional grounds and also pray for further reliefs. The Respondents have also filed further reply affidavit in response to the amended Petitions.

(v) By way of amendment, the Petitioner-RMD prays for further relief of quashing and setting-aside the sanction granted by the Commissioner of Police, Mumbai for taking cognizance of the alleged offence against him under MCOC Act. In support of this relief, by way of amendment of the Writ Petition, additional grounds have been raised which essentially purport to question the justness of the process of according sanction by the Appropriate Authority qua the said Petitioner-RMD. Grievance is also made about the fresh non-bailable warrants issued against the Petitioners on 27th February, 2006 by the Special Court on the basis of incorrect representation made by the Respondents that the Petitioners were not co-operating during the further investigation. Further, the Special Court was persuaded to issue non-bailable warrants inspite of the fact that the order of stay of further proceedings passed by this Court was in force. Nevertheless, the Petitioners appeared before the Court and made application for furnishing copy of the FIR and inspection of Roznama. According to the Petitioner-RMD as recently as on 6th February, 2006, the Investigating Officer informed the Special Court that he would require at least one month's time for finalization of the investigation and yet the sanction was accorded by the Commissioner of Police, Brihan Mumbai on 21st February, 2006. In other words, even though the further investigation was inconclusive, sanction has been accorded by the Commissioner of Police which clearly indicates that it is a case of non-application of mind. In the additional grounds of challenge, it is urged by Petitioner-RMD that till date, no FIR for any offence against the said Petitioner, much less, under MCOC Act has been registered. Moreover, there is nothing on record to show that prior approval has been given by the Police Officer not below the rank of Deputy General of Police for registration of MCOCA offence against the Petitioners. In absence thereof, no inv_vestigation has been made, the same would be illegal and without authority of law. Further, the sanction granted under Section 23(2) of the MCOC Act against the Petitioners is without jurisdiction and not in accordance with the provisions of law. It is urged that the further investigation has been entrusted to CBI to find out the link between the Gutka Manufacturers and the underworld i.e. Dawood Ibrahim and others. It is stated that CBI has investigated offence by registering FIR in Crime No.RC 4(S)/2005/9.2.05. However, no copy of the FIR against the Petitioner has been forwarded to the MCOC Court under Section 157 of the Cr.P.C.. Although the CBI is investigating to find out any link between the Petitioner and the underworld Dawood Ibrahim and others, since no link has been found, CBI has not registered any FIR in this matter against the Petitioner-RMD. At the end, it is urged that the Petitioner be permitted to urge further grounds after the contents of the text of the sanction accorded by the Commissioner of Police, Mumbai becomes available to the Petitioner.

(w) More or less, similar additional contention has been taken in the second Petition filed by Petitioner-JMJ. In the amended grounds of Writ Petition filed by JMJ, it is prayed that the sanction issued by the Respondent No.2 under Section 23(2) of the MCOC Act against the Petitioner-JMJ be quashed and set-aside. This Petitioner (JMJ) has also prayed for quashing and setting aside order dated 22nd February, 2006 passed by the Special Court of issuing non-bailable warrant against the Petitioner in Special Case No.1/2005. To buttress these additional reliefs by way of amended grounds, it is urged by this Petitioner-JMJ that assuming for the sake of argument that the allegation against the Petitioner that he had supplied a formula to manufacture Gutka to a member of the organized crime syndicate to be true, that would not attract the offence within the meaning of Section 3(2) of the MCOC Act. In other words, there is no material to disclose involvement of the Petitioner of having aided or abetted commission of offence in connection with the organized crime syndicate. There was nothing to show that the Petitioner-JMJ has rendered any assistance or entered into communication with the organized crime syndicate with actual knowledge thereof. According to this Petitioner, the alleged act of commission and omission of the Petitioner is at best assistance to a member of the organized crime syndicate unconnected with the activity of the organized crime or continuing unlawful activity. For that reason, the Petitioner cannot be proceeded for offence under Section 3(2) of the Act. It is also reiterated that the Special Judge proceeded to issue non-bailable warrant on 27th February, 2006 inspite of the fact that the stay granted by the Division Bench of this Court dated 24th August, 2005 was in force.

3. Counsel appearing for the parties, in addition to making oral submissions, took liberty to file written submissions. Although, attempt has been made to improve upon and enlarge the grounds of challenge during the oral arguments as well as in the written submissions, we would prefer to decide the matter on the basis of the case as pleaded in the respective Petitions. As aforesaid after the issuance of sanction order by the Commissioner of Police, Brihan Mumbai dated 21st February, 2006, the controversy must now revolve around the said sanction order. The basis or the reasons recorded by the Special Court in his order dated 26th July, 2005 would recede in the background and in our opinion, would be of no consequence. As a matter of fact, the said order passed by the Special Court dated 26th July, 2005 is a benign order which purports to issue directions to the Special Public Prosecutor to make copies of the relevant documents and furnish the same to the Petitioners herein so as to give opportunity to the Petitioners to make statement before the Court, if they so desire, on the basis of which, appropriate orders were likely to be passed. At best, the observations in the said order to the extent it has rejected the objection of the Petitioners that the Court cannot resort to the stated procedure against the Petitioners in absence of a valid sanction accorded under Section 23(2) of the MCOC Act to prosecute the Petitioners herein in connection with the alleged offence, is adverse to the Petitioners. Similarly, the opinion recorded by the Special Court that it was open to the Court to take recourse to such measure in exercise of powers under Section 319 of Cr.P.C. can also be considered as adverse to the Petitioners. However, we need not dilate on the correctness or otherwise of the said opinion expressed by the Special Court in his order dated 26th July, 2005, which was the basis of filing the two Writ Petitions under consideration before this Court. That, however, would not mean that we are approving the view recorded by the Special Court in the said decision dated 26th July, 2005 in any manner. This is so because, if the Appropriate Authority has already accorded sanction and if the said sanction to prosecute the Petitioners herein is valid, that would not only enable the Investigating Officer to file the further police report/supplementary charge-sheet to name the Petitioners before us as additional accused to be tried along with the named accused in the FIR, but even the Special Court would be within its jurisdiction to take cognizance of offence against the Petitioners herein as alleged in the proposed further police report/supplementary charge-sheet. If so, the substratum of the reasons recorded in the order of the Special Court dated 26th July, 2005 would be of no relevance. In other words, the matter must proceed on the basis of the stated sanction order passed by the Commissioner Police, Brihan Mumbai dated 21st December, 2006, which in turn accords sanction to proceed against both the Petitioners before this Court in connection with the alleged offence mentioned in the further police report/supplementary charge-sheet proposed to be filed before the Special Court against the Petitioners herein.

4. Thus understood, in our opinion, the broad points that may have to be addressed by us, on the basis of the subsequent event and the grounds pleaded in the two Writ Petitions and arguments in that behalf, can be articulated as follows :

(i) Can the Petitioners be proceeded on the basis of pre-existing registered FIR which does not even make remote reference to the involvement of the Petitioners herein ? Further, was it incumbent to at least formally register offence against the Petitioners herein in the first place before undertaking any investigation about the involvement of the Petitioners in connection with the alleged offence referred to in the FIR ?

(ii) Whether before registration of offence against the Petitioners, prior approval under Section 23(1)(a) of the MCOC Act is a sine-qua-non ? In absence of such prior approval, neither registration of offence against the Petitioners herein nor investigation could be proceeded against and if done, the same will be invalid and without authority of law ?

(iii) When the further investigation of the case is transferred to independent investigating agency namely CBI, can the sanction order under Section 23(2) of the MCOC Act be issued by the member of the police force of State of Maharashtra (Commissioner of Police, Brihan Mumbai) or was required to be issued by the member of the Special Police Force called Delhi Special Police Establishment ?

(iv) Can sanction under Section 23(2) of the Act be accorded by the Appropriate Authority even before the further investigation is complete ?

(v) Whether sanction accorded under Section 23(2) in the fact situation of the present case is invalid having been given under dictation of the Special Court ?

(vi) Whether there is any material to disclose the nexus or involvement of the Petitioners herein having assisted, communicated or associated with a person belonging to organised crime syndicate in his criminal activity or organised crime ?

(vii) Considering the fact that the alleged act of commission and omission of the Petitioners herein took place outside India, can the matter proceed against the Petitioners herein in absence of previous sanction of the Appropriate Authority under Section 188 of the Cr.P.C. ?

(viii) Whether the Special Judge has committed manifest error and acted in excess of his jurisdiction and without authority of law in issuing directions contained in his order dated 26th July, 2005 including of issuing non-bailable warrants against the Petitioners herein and for surrendering their passports ?

POINTS (i) & (ii) :

5. Reverting to the first two points, which, in our opinion, can be addressed together, it is not in dispute that no fresh FIR against the Petitioners herein has been registered. It is also not in dispute that no separate prior approval under Section 23(1)(a) of the Act has been obtained qua the Petitioners in connection with the offence referred to in the registered FIR or in the proposed supplementary charge-sheet/further police report. Therefore, the question is : whether the prosecution is precluded from proceeding against the Petitioners herein in connection with the offence referred to in the supplementary charge-sheet/further police report. To answer the points under consideration, it would be useful to advert to the exposition of the Division Bench of our High Court in the case of John D'Souza Vs. Assistant Commissioner of Police reported in Manu/MH/0797/2007 : [2007 ALL MR (Cri) 2899]. In that case, the Court considered three questions. Firstly, whether it is necessary that a separate information under Section 23(1)(a) of the MCOC Act should be recorded after the approval is accorded under this Section even in cases where the crime has already been registered after recording the FIR under Section 154 of Cr.P.C. for the offence under the I.P.C. ? The second question considered was whether a Police Officer, other than the Officer mentioned in Section 23(1)(a) of the MCOC Act, has power to club two or more similar offences together, having been committed by the very same organised crime syndicate before the sanction under Section 23(2) is accorded without seeking a fresh approval in respect thereof and the Police Officer mentioned in sub-section 23(1)(b) can proceed to investigate them as a single offence ? The third question considered was whether the sanction accorded under Section 23(2) of the MCOC Act would be rendered invalid on the ground that prior approval under Section 23(1)(a) was not obtained for recording an information about offence registered earlier which is clubbed with another offence for which the approval had been granted ? With regard to the first question, in paragraph 17, the Court observed thus :

"17. It is thus clear, that recording of FIR and registration of an offence, though appear to be independent acts, where latter follows the former, FIR cannot be recorded without it being registered as an offence or there cannot be registration of an offence without recording FIR. In other words, an "information" about the commission of a cognizable offence, becomes FIR within the meaning of Section 154 of the Code or even section 23(1)(a) of MCOCA, only if and when the offence is registered on the basis thereof, otherwise it would, at the most, be a statement under section 161 of the Code. These two acts, in fact, are performed simultaneously. The word "information" and the expression "shall be recorded" employed in Section 23(1)(a), thus, mean "registration of an offence" in the case where the offence had already been registered under ordinary law. In other words, the word "recorded" used in Section 23(1)(a) will also have to be read to mean "registration" of an offence. It is now well settled that there can be no second FIR. However, there could be fresh registration of the offence and in that case there could be a new number of the crime register. In the present case itself, initially the offence was registered by Dr. D. B. Marg Police Station and subsequently it was transfer to DCB, CID where it was once again registered and different C.R. number was given by DCB, CID." (emphasis supplied)

Insofar as the other two questions, the Court expounded as follows :

"24. A conjoint reading of all the three definitions clearly demonstrate that seeking prior approval of the competent police officer for recording information about the commission of an offence of "organised crime" under MCOCA is a condition precedent and it is mandatory in nature. It does not provide for the prior approval in relation to any single act of crime constituting an offence but the approval is in relation to "organised crime and continuing unlawful activity of organised crime syndicate". Merely because a police officer approaching the competent police officer seeking prior approval under section 23(1)(a) making reference to a particular crime does not mean that the prior approval pertains to only that crime. In our opinion, an act of making reference to only one crime is with a view to seek the approval for registering the commission of an offence of "organised crime" by a particular organised crime syndicate and in respect of continuing unlawful activity under MCOCA and to set the criminal law in motion and marks the commencement of investigation. In the course of investigation if the investigating officer comes across any other offence of similar nature or which, in the opinion of the investigating officer, also constitutes an offence of "organised crime" under MCOCA and if it is committed by the very same organised crime syndicate, we find no reason as to why he cannot make it a part of the same offence of "organised crime" to which the prior approval has been granted. We do not find any provision in MCOCA which prohibits or put any fetter on the powers of the investigating officer from doing so. No separate approval under section 23(1)(a) to every such offence is necessary. The investigating officer under section 23(1)(a), in our opinion, has every right to investigate an offence of organised crime of the organised crime syndicate and not only an offence in relation to which the prior approval has been granted. In other words, once having granted the approval the investigating officer after recording/registering an offence under MCOCA has every right, in the course of investigation, to club any other offence committed by the same organised crime syndicate disclosing the offence of organised crime under MCOCA. With every new offence of organised crime, being disclosed after the approval is accorded in connection with a particular crime, there need not be a fresh procedure for a police officer to follow starting with fresh approval in relation thereof. In our opinion, once the approval is granted, until the stage of seeking sanction reaches, there is no prohibition or fetter on the powers of such investigating officer to club other offence/s committed by the very same organised crime syndicate and which, in the opinion of the investigating agency, is a part of organised crime, namely, continuing unlawful activity of the very same organised crime syndicate.

25. In short, on receipt of an "information" about the commission of an offence of organised crime under MCOCA or having realised in the course of investigation of the offence registered under ordinary law, that the provisions of MCOCA are attracted a police officer can seek approval under section 23(1)(a) of the police officer not below the rank of the Deputy Inspector General of Police. Then the competent police officer under section 23(1)(b) has to investigate not merely the offence/crime registered for which the approval has been sought but also other offences/crimes found to have been committed in the course of investigation by the same "organised crime syndicate" as a part of their "continuing unlawful activity". Such offence/s could be clubbed and treated as one single offence of "organised crime" under MCOCA. No separate approval under section 23(1)(a) is necessary in such a situation to either club or investigate such offences and try them as one single offence under MCOCA after seeking sanction under section 23(2). The last filter, that is, according a sanction under section 23(2) is sufficient enough to take care of any wrong or illegality committed by the investigating officer in the course of investigation." (emphasis supplied)

6. The exposition of another Division Bench of our High Court in the case of Pradip Madgaonkar @ Bandya Mama Vs. State of Maharashtra decided on 10th November, 2006 in Criminal Writ Petition No.988/2006 along with companion matters may also be useful for the points under consideration. In Paragraph 8, the Court observed that the only point which required consideration was whether the prosecution has complied with the provisions of Section 23(1) and (2) of the MCOC Act. Insofar as Petitioner Vinod Asrani in the said case was concerned, his name did not figure in the prior approval order under Section 23(1)(a) of the Act dated 13th December, 2005 passed by the Joint Commissioner of Police (Crime) Mumbai. On that basis, it was argued that the Investigating Officer have had no jurisdiction to investigate his complicity in the organised crime. This argument was resisted by the prosecution on the argument that once prior approval under Section 23(1)(a) was granted to the Investigating Officer with regard to offence under MCOC Act, that would be sufficient to authorise the Investigating Officer to investigate the matter not only against the named accused but also against other persons if the material becomes available during the course of investigation disclosing their involvement in the commission of the alleged offence. The Division Bench in Paragraph 14, negatived the plea taken on behalf of Vinod Asrani in the following words :

"14. In so far as the case of the petitioner Vinod Asrani as to the second limb of argument canvassed by Mr. Sushil Kumar, the learned Senior Advocate appearing for the petitioner, that the Commissioner of Police could not grant sanction under Section 23(2) against the petitioner as the case against him has not been investigated without seeking prior approval under sub-section (1) of Section 23 of MCOC Act, 1999 is concerned, it cannot be accepted as we do not find that the sanction accorded against the petitioner by the Commissioner of Police is vitiated for want of prior approval which is not the pre-requisite for granting of sanction."

In Paragraphs 16 and 17, the Division Bench went on to observe as follows :

"16. The plain reading of the said section clearly indicates the safeguards it provides against the misuse/abuse of the provisions of the MCOC Act, 1999 by the State and, therefore, it clearly lays down in so far as the first part is concerned that no information about the commission of offence of organised crime under this Act shall be recorded by police officer without prior approval of the police officer not below the rank of Deputy Inspector General of Police and that 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 which in our view regulated the registering of an offence as an organised crime under the MCOC Act, 1999 and its investigation. The contention of Mr. Sushil Kumar, the learned senior advocate appearing for the petitioner, that the information about the commission of an offence of an organised crime has to be qua all the persons who are found to be involved in commission of such an offence cannot be accepted as sub-section (1)(a) of Section 23 of the said Act does not say so. Mr. Sushil Kumar has referred to the proviso of Section (3)(a) of Section 20 of the MCOC Act of 1999 to make a point that unless the information is in respect of the persons found having committed an organised crime, there cannot be any blanket approval as even in case of all persons who have been found to be absconding or concealing themselves they cannot be apprehended, the proviso requires that the date of registering offence against such person who has absconded or is concealing himself would rather go to indicate that the information received has to be against such person which would necessarily require approval before offences under MCOC Act are registered on the basis of any information for having committed an organised crime punishable under the MCOC Act, 1999 as held in Mukhtiar Ahmed Ansari's case (cited supra). In the absence of any prior approval either in writing or oral the proceedings will stand vitiated and, therefore, in the case of Vinod Asrani when the approval was granted his name did not figure in the list of persons against whom information was received of having committed or associated with organised crime and therefore he could not have been subsequently arrested without prior approval which is admittedly not there in his case. With all humility at our command, the decision in Mukhtiar Ahmed Ansari's case (cited supra) cannot be misconstrued and read so as to mean that after an approval has been granted by the police officer not below the rank of Deputy Inspector General of Police as required under sub-section (1)(a) of Section 23 of registering an offence of organised crime under this Act if in the course of investigation of the offence of organised crime committed by organised crime syndicate, complicity of other members of the organised crime syndicate including the persons who have been found to have aided and abetted the organised crime committed by the organised crime syndicate is seen, the investigating officer will have to seek further approval in a case of such a person/suspect. Therefore, in our view once an approval has been granted as contemplated under sub-section (1)(a) to Section 23 in respect of information about the commission of offence of organised crime under this Act, there is no requirement under the law to seek further approval in the course of investigation of the organised crime which may lead to collection of further material and disclosure of complicity of persons whose names and involvement did not figure at the time the initial information about the commission of an offence about the organised crime under the MCOC Act comes within the knowledge of the investigating agency if it is arising out of the commission of the offence and in the course of same transaction which was revealed by the information about the commission of an offence of an organised crime under the said Act. Otherwise it would lead to an absurdity that with the progress of investigation if additional material is collected and involvement of persons whose complicity was not known at the time the initial information was received is seen, the police officer who is investigating the offence will have to again go and seek prior approval qua the person whose involvement in the offence is subsequently found. The protection/safeguard relates to the initial information about the commission of an offence about organised crime under this Act which requires prior approval of the police officer not below the rank of Deputy Inspector General of Police for registering the case under the provisions of MCOC Act of 1999. Mukhtiar Ahmed Ansari's case also stands distinguished on facts. His prosecution stood vitiated under the provisions of TADA (P) Act, 1987 as no prior approval u/s.20-A(1) was taken at all to register offences under the said Act against him and he was the sole accused who was put on trial before the Designated Court under the said Act which is not so in the case of the Petitioner. Prior approval has been taken under sub-section (1)(a) of Section 23 of the MCOC Act of the competent authority on receipt of the information and thereafter offences under MCOC Act, 1999 came to be registered and investigation was conducted.

17. It is not that once the police gets prior approval as contemplated in sub-section (1)(a) of Section 23 in respect of information of commission of an offence about the organized crime, there is no further check on them. It will otherwise mean a blanket approval so that they can rope in any person they desire without his complicity being scrutinised by superior police officer of the rank of Deputy Inspector General of Police. Sub-section (2) of Section 23 takes care of such a contingency as sanction is required before a person is required to be charge sheeted and then only the Special Court can take cognizance of an offence under this Act. It cannot be done without the previous sanction of the police officer not below the rank of Additional Director General of Police and the stage when the charge sheet is required to be filed the investigating officer will have to satisfy the Additional Director General of Police to accord sanction qua the persons who are proposed to be charge sheeted before the Special Court and the law on this issue is well settled. Sanction for prosecution is required to be obtained with respect to specific accused as this being a special statute and hence maxim generalia specialibus non derogant would apply and it has a overriding effect over the general provisions of Section 190 or Section 319 of Criminal Procedure Code and the Special Court cannot take cognizance of the offence against the person to whom no sanction is granted by the sanctioning authority. The provision of sanction is the most salutary safeguard. The sanctioning authority is placed somewhat in the position of a sentinel at the door of criminal Courts in order that no irresponsible or malicious prosecution can pass the portals of Court of Justice and, therefore, at the subsequent stage before a person is exposed to prosecution, his complicity is to be adjudged by the sanctioning authority. Therefore, we do not find any error merely because name of the petitioner Vinod Asrani did not figure at the initial stage about the commission of offence of organised crime i.e. in Crime No.150 of 2005 of DCB, CID, but subsequently on investigation when the investigating officer submitted his report dated 1.6.2005 along with papers of investigation, the prior approval of the Joint Commissioner of Police (Crime), Mumbai, dated 13.12.2005 was obtained for applying the provisions of the MCOC Act, 1999 to the said case, the Commissioner of Police granted sanction against the petitioner for his prosecution in the category of wanted accused vide order dated 24.3.2006. Therefore, we do not find any merit in the petition filed by Vinod Asrani and it stands dismissed.

18. In so far as the petition filed by Jayant Mule is concerned for quashing the proceedings against him also does not require any consideration for want of merit. Therefore, this petition also stands dismissed." (emphasis supplied)

7. Notably, the above said decision has been upheld by the Apex Court in the case of Vinod G. Asrani Vs. State of Maharashtra reported in AIR 2007 SC 1253 : [2007 ALL MR (Cri) 832 (S.C.)]. The Supreme Court proceeded to observe as follows :

"8. 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.

9. As pointed out by Mr. Ahmed, this Court in the case of Kari Choudhary Vs. Mst. Sita Devi and Ors., (2002)1 SCC 714 : (2001 AIR SCW 5051), 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) of MCOCA 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." (emphasis supplied)

8. We may also usefully refer to the decision of the Apex Court in the case of Ahmed Umar Saeed Sheikh Vs. State of U.P. reported in (1996)11 SCC 61, wherein the provisions of Section 20-A of TADA Act were considered. These provisions are analogous to the provisions of Section 23 of the MCOC Act. The Court on analysing the legal position, went on to observe that grant of subsequent approval when during investigation involvement of the accused in TADA offence is revealed and filing of charge-sheet with the sanction of the authority concerned was sufficient compliance.

9. From the above decisions, it would necessarily follow that once prior approval was granted by the Competent Authority on 21st October, 2004 for applying the provisions of Section 3 of MCOC Act, to DCB CID Unit 9 C.R. No.122/2004 under Section 120-B of the I.P.C. r/w. Sections 384, 387 and 34 of the I.P.C. r/w. Sections 3 and 25 of Arms Act, that authorised the Investigating Officer to investigate the said case against all concerned and not limited to the named accused. Indeed, after the investigation, before filing of charge-sheet in Court, the Investigating Officer is obliged to obtain sanction under Section 23(2) of the MCOC Act from the Appropriate Authority. If such sanction were to be granted generally with reference to the proposed charge-sheet, that would be sufficient compliance. However, if the Sanctioning Authority were to accord sanction to prosecute only some of the accused referred to in the charge-sheet then the sanction to prosecute would apply only as against those accused and offence under the provisions of MCOC would apply only qua those accused. In which case, the accused against whom such sanction is not accorded, cannot be proceeded further for the offence under MCOC Act, as the Special Court cannot take cognizance of that offence against such accused.

10. In the present case, the investigation for offence under Section 3 of the MCOC Act proceeded only after prior approval was granted on 21st October, 2004 by the Competent Authority. Indeed, the investigating agency was later on changed and eventually CBI took over the investigation with effect from 9th February, 2005. The fact that there was change in the investigating agency, does not mean that the new investigating agency could not have proceeded in the matter or undertaken further investigation from the same stage when it took over the case, unless fresh prior approval procedure under Section 23(1)(a) was followed. Such argument clearly overlooks that with the change of investigating team, what happens is only further investigation is taken over by the subsequently nominated investigating team. That does not efface the prior approval granted by the competent Authority. Even the fact that the newly appointed investigating agency re-registers the case, does not affect the prior approval granted by the Competent Authority. The re-registration of the case with the newly appointed investigating agency is with a view to continue with the further investigation of the same case and not an independent case as such. In this view of the matter, the fact that the Petitioners herein have been proceeded on the basis of pre-existing registered FIR, which does not make reference to the involvement of the Petitioners in the offence referred to in the said FIR would not take the matter any further. Inasmuch as, during the course of investigation, if material has come on record to disclose the involvement of the Petitioners herein in relation to the offence referred to in the FIR and on the basis of which charge-sheet were to be filed, it would not be necessary to first register offence against such persons whose involvement has been disclosed during the investigation. But the prosecuting agency would be competent to file charge-sheet on compliance of other formalities preceding filing of the charge-sheet in Court against such persons. In such a case, the question of obtaining of prior approval under Section 23(1)(a) of the MCOC Act against such person, would not arise and the prior approval which has already been granted on the basis of which investigation for offence punishable under Section 3 of the MCOC Act proceeded, would be sufficient compliance. As a matter of fact, on fair reading of prior approval dated 21st October, 2004, it is not as if it has been granted only against specific accused. Such argument cannot be countenanced. In any case, in law, even if the prior approval under Section 23(1)(a) of the MCOC Act was to be granted in connection with the FIR which mentioned name of only some of the accused; but if during the course of investigation, it transpires that even other persons were engaged in the commission of the alleged offences, the prior approval so granted would be sufficient compliance and the investigating agency would be free to investigate the matter even against such persons but would be bound to take sanction of the Appropriate Authority even against the additional accused, before filing of the charge-sheet which would name those persons in addition to the named accused. Suffice it to observe that no separate approval under Section 23(1)(a) would be required for every offence subsequently investigated and found to have been committed by the same organised crime syndicate as part of its continuing unlawful activity. For, it could be clubbed and treated as one single offence of organised crime under the MCOC Act. The question as to whether that offence is in relation to offence of organised crime committed in the course of some other transaction or not in relation to same facts, is a matter to be considered only after filing of further police report and the sanction order.

11. Counsel for the Petitioners would, however, rely on the decision of the Apex Court in the case of State of Maharashtra & Ors. Vs. Lalit Somdatta Nagpal & Anr. reported in (2007)4 SCC 171 : [2007 ALL SCR 1078]. In this case, however, the question primarily considered was whether the provisions of MCOC Act would have application to the cases covered by the provisions of Essential Commodities Act, 1955. In other words, the applicability of MCOC Act to the offence alleged to have been committed under the provisions of Essential Commodities Act was the matter in issue. The Apex Court on analysing the Scheme of the two Enactments, has taken the view that the offence ascribable to the provisions of the Essential Commodities Act would not attract the offence of organized crime under the MCOC Act. It is on that finding, the Court went on to hold that the sanction as well as prior approval accorded to prosecute the accused therein, suffer from non-application of mind. We fail to understand how this decision would be of any avail to the Petitioners.

12. Reliance was also placed on the decision in the case of Mukhtiar Ahmed Ansari Vs. State (N.C.T. of Delhi) reported in (2005)5 SCC 258 : [2005 ALL MR (Cri) 1775 (S.C.)]. In that case, however, no prior approval for investigating the offence of TADA was granted "at all". It is on that finding of fact, the Court proceeded to hold that the investigation done and the subsequent proceedings in absence of such prior approval were vitiated insofar as the offences punishable under the provisions of TADA were concerned. The Court positively found that the prosecution had failed to prove that the Appropriate Authority had ever granted prior approval either in writing or orally as the case may be. Whereas, the sanction order merely made reference to the offence punishable under the provisions of the Arms Act. In this backdrop, the Court opined that the entire proceedings with regard to the offence punishable under TADA Act were vitiated.

13. In the present case, it is stated on behalf of the Respondents that sanction under Section 23(2) has already been accorded qua the Petitioners before this Court in relation to offence in question punishable under the provisions of Section 3 of MCOC Act; and consequent to the said sanction, the further police report/supplementary charge-sheet naming the Petitioners as accused in the said crime will be presented before the Special Court. The question whether the said sanction is valid or otherwise and whether there is enough material either to accord such sanction for prosecution of Petitioners herein much less, for filing of charge-sheet against them, is a matter which can be examined at the appropriate stage.

14. Counsel for the Petitioner has placed reliance on the case of Jamiruddin Ansari Vs. CBI & Anr. reported in (2009)6 SCC 316 : [2009 ALL MR (Cri) 2790 (S.C.)]. In this case, however, the principal question considered was about whether an investigation could be ordered by the Special Court constituted under MCOC Act, save and except in accordance with Section 23(1) of MCOC and interplay, if any, between Section 9(1) and Section 23 of MCOC Act. The matter has been considered in that perspective. This decision cannot be pressed into service as an authority on the proposition that in absence of prior approval specifically against the Petitioners herein, no investigation could be proceeded against the Petitioners inspite of prior approval granted by the Appropriate Authority at the time of invoking offence under Section 3 of the Act or for that matter, it was not open to the Appropriate Authority to accord sanction to prosecute the Petitioners herein, even if such a sanction were to be valid sanction on the basis of which the Special Court could take cognizance of offence even against the Petitioners herein.

15. Counsel for the Petitioners also relied on another decision of the Apex Court in the case of Anjani Kumar Vs. State of Bihar & Anr. reported in (2008)5 SCC 248 : [2008 ALL SCR 1646] to contend that pre-trial challenge was open and could be resorted to by the Petitioners on the ground that there was no valid sanction or prior approval against the Petitioners. In that case, the High Court took the view that no sanction was required to prosecute the accused persons who were public servants in the facts of that case. The Apex Court overturned the said opinion of the High Court on the basis of factual background essentially on the finding that the complaint made against the accused persons who were public servants was itself malafide. Indeed, in Paragraph 14 of the Judgment, it went on to observe that even the applicability of Section 197 of the Code would be attracted. Taking overall view, therefore, the Apex Court quashed the continuance of the proceedings by the prosecution against the Petitioners on the finding that it would be abuse of the process of law. In the present case, however, the Respondents have stated that sanction has been accorded by the Appropriate Authority to prosecute the Petitioners herein in connection with the alleged offence for which the proposed supplementary charge-sheet/further police report would be presented before the Special Court. The question whether the said sanction to prosecute the Petitioners herein is a valid sanction or otherwise, as aforesaid, is a matter which will have to be answered at the appropriate stage after the supplementary charge-sheet/further police report is presented before the Special Court along with the sanction order.

16. Counsel for the Petitioners had also relied on authorities on the proposition that cognizance can be taken by the Court for offences under provisions of Section 3 of MCOC Act only after sanction to prosecute the concerned accused is accorded by the Competent Authority. (See Harpal Singh Vs. State of Punjab - (2007)13 SCC 387 : [2008 ALL SCR 616] (Paras 8, 12 & 13); Dilawar Singh Vs. Parvinder Singh @ Iqbal Singh & Anr. - (2005)12 SCC 709 : [2006 ALL MR (Cri) 278 (S.C.)] (Paras 4, 7 & 8); AIR (38) 1951 SC 207 (Paras 8 & 9)). As also on the proposition about the requirements of a valid sanction. (Rambhai Nathabhai Gadhvi & Ors. Vs. State of Gujarat - (1997)7 SCC 744 (Paras 8, 10, 14 & 20); Mansukhlal Vithaldas Chauhan Vs. State of Gujarat - (1997)7 SCC 622 (Para 19 also see Paras 18 & 23)). Reliance is also placed on the decision in Ranjitsingh B. Sharma Vs. State of Maharashtra reported in 2005(5) SCC 294 and Madan R. Gangwani Vs. State of Maharashtra reported in 2009 ALL MR (Cri) 1447 to contend that unless material is shown to indicate the nexus of the Petitioners with the member of the organised crime syndicate or to attract the ingredients of organised crime, the Petitioners cannot be proceeded against in connection with the alleged offence. This argument can be looked into only after filing of further police report. The learned A.S.G., however, relies on the decisions in the case of Anil Sadashiv Nandurkar Vs. State of Maharashtra reported in 2008(3) Mah.L.J. (Cri.) 650 (paras 13, 18, 19, 24 & 25); and R. R. Chari Vs. State of Uttar Pradesh reported in AIR 1951 SC 207 (paras 8 and 9). The decisions referred to above need not detain us. In the first place, as aforesaid, the Respondents assert that now sanction is accorded to prosecute the Petitioners before us by the Appropriate Authority. If so, the Special Court would be free to take cognizance of offence against the Petitioners before us. Whether the said sanction is valid or otherwise, is a matter which will have to be considered at the appropriate stage only after it is presented before the Special Court along with the supplementary charge-sheet/further police report.

POINT NO.(iii) :

17. That takes us to Point No.(iii). It is not in dispute that the FIR was registered by the local State Police Force on 27th September, 2004 in respect of offences punishable under the Arms Act and IPC. After prior approval was accorded by the Competent Authority, FIR in respect of offence punishable under Section 3 of the MCOC Act along with the offence under the Arms Act and IPC came to be registered by the local State Police Force. The investigation into the said offence was done by the local State Police Force and charge-sheet came to be filed against the named four accused on 24th January, 2005. The Court then permitted further investigation under Section 173(8) of the Code. However, at a later stage, new investigating agency, namely, CBI, came to be appointed on 9th February, 2005 to undertake further investigation. Significantly, before that, the charge-sheet against the named four accused was filed on 24th January, 2005, on the basis of sanction accorded by the Commissioner of Police, Brihan Mumbai dated 21st January, 2005. That sanction was only in respect of four accused named in the FIR. However, after further investigation by the newly appointed investigating agency namely CBI, the papers were once again submitted to the Commissioner of Police, Brihan Mumbai for according sanction to prosecute the Petitioners before this Court. It is stated that the Commissioner of Police, Brihan Mumbai has accorded sanction to prosecute the Petitioners herein on 21st February, 2006.

18. In this backdrop, the question is: whether the further investigation having been done exclusively by the members of Police Force called Delhi Special Police Establishment namely the CBI, can the sanction be accorded by the member of the Police Force of State of Maharashtra i.e. the Commissioner of Police, Brihan Mumbai or whether the sanction ought to have been granted only by the member of the Special Police Force called Delhi Special Police Force Establishment.

19. To answer this controversy, we would first turn to Section 23 of the MCOC Act. Section 23(2) of the MCOC Act postulates that no Special Court shall take cognizance of any offence under MCOC Act without the previous sanction of the police officer not below the rank of additional Director General of Police. The expression "police officer" has not been defined in the MCOC Act of 1999. That expression has not been defined even in the Cr.P.C.. Indeed, Section 2(s) of the Cr.P.C. defines the expression "police station" and Section 2(o) defines the expression "officer in-charge of a police station". Considering the fact that the MCOC Act is a State Legislation, it would necessarily refer to the members of the Police Force in the State of Maharashtra as referred to in Mumbai Police Act, Mumbai General Clauses Act and Mumbai Police Force Establishment Act.

20. Ordinarily, it is the member of the Police Force of the State of Maharashtra who is expected to discharge the duty of according sanction under Section 23(2) of the MCOC Act. Indeed, the said Officer should be Police Officer not below the rank of additional Director General of Police. However, in the present case, the further investigation was handed over to CBI which is a Special Police Force called the Delhi Special Police Establishment. The said police force is established by virtue of the Delhi Special Police Establishment Act, 1946 (hereinafter referred to as 'the Act of 1946'). The scope of activity of the said police force can be discerned from the said enactment. The preamble of the Act predicates that it is an act to make provision of a constitution of a Special Police Force in Delhi "for the investigation of certain offences" in the Union territories, for the superintendence and administration of the said force and for the extension to other of the powers and jurisdiction of the members of the said force "in regard to the investigation of the said offences". From the preamble, it is obvious that emphasis has been placed on the activity of investigation of the specified offence by the Special Police Force constituted under the said Act of 1946. Section 2 of the said Act deals with constitution and powers of special police establishment. Sub-section (1) thereof provides that notwithstanding anything in the Police Act, 1861, the Central Government may constitute a special police force to be called the Delhi Special Police Establishment "for the investigation" in any Union territory of offences notified under Section 3. On issuance of order by Central Government, the members of the Special Police Force of or above the rank of Sub-Inspector may exercise any of the powers of the officer in-charge of a Police Station in the area in which he is for the time being and when so exercising such powers be deemed to be an officer in-charge of a Police Station discharging the functions of such an officer within the limits of his Station. Insofar as extending the jurisdiction of Special Police Establishment to other areas other than Union territories such as State of Maharashtra, that is done by issuance of order under Section 5(1) of the Act. We would, therefore, reproduce Section 5 of the Act of 1946, which reads thus :

"Section 5 - Extension of powers and jurisdiction of special police establishment to other areas

(1) The Central Government may by order extend to any area (including Railway areas),1[in2[a State, not being a Union territory]] the power and jurisdiction of members of the Delhi Special Police Establishment for the investigation of any offences or classes of offences specified in a notification under section 3.

(2) When by an order under sub-section (1) the powers and jurisdiction of members of the said police establishment are extended to any such area, a member thereof may, subject to any orders which the Central Government may make in this behalf, discharge the functions of a police officer in that area and shall, while so discharging such functions, be deemed to be a member of a police force of that area and be vested with the powers, functions and privileges and be subject to the liabilities of a police officer belonging to that police force.

(3) Where by such order under sub-section (1) is made in relation to any area, then, without prejudice to the provisions of sub-section (2) any member of the Delhi Special Police Establishment of or above the rank of Sub-Inspector may subject to any orders which the Central Government may make in this behalf, exercise the powers of the officer in charge of a police station in that area and when so exercising such powers, shall be deemed to be an officer-in-charge of a police station discharging the functions of such an officer within the limits of his station."

21. We have already reproduced the Government Notification dated 9th February, 2005 in terms whereof the further investigation of the case has been made over to CBI with the consent of the State Government. The further investigation is relating to nexus between the gutka manufacturers and the underworld, and attempts, abetments, conspiracies in relation to, or in connection with the said offences, and any other offences committed in the course of the same transaction or arising out of the same facts.

22. On plain language of Section 5, it would appear that upon issuance of the above said Notification, the powers and jurisdiction of members of the Delhi Special Police Establishment "for the investigation of any offence or class of offence" specified in a Notification under Section 3 would stand extended to said area, in the present case, State of Maharashtra. Further, the members of the Special Police Establishment, subject to any orders which the Central Government may make in this behalf, discharge the functions of a police officer in that area and shall while so discharging such functions are deemed to be members of the police force of that area. For that purpose, they are vested with the powers, functions and privileges and be subject to the liabilities of a police officer belonging to that police force. In the first place, the language of sub-section (2) clearly indicates that on account of deeming fiction, the members of the Special Police Force would be deemed to be members of the Police Force of the concerned area (in the present case, State of Maharashtra). That per se would not divest the powers, functions, and privileges as also liabilities of police force of State of Maharashtra. On account of the deeming provision, in law, the members of the Special Police Force may "also" be entitled to discharge the functions such as under Section 23(2) of the MCOC Act. The fact that the members of the Special Police Force are exclusively entrusted with the further investigation of the criminal case on account of the Notification dated February 9, 2005 or otherwise does not divest the powers, functions and privileges and the liabilities of the members of the Police Force of State of Maharashtra, in particular, in the context of Section 23(2) of the MCOC Act. Indeed, in law, on account of the deeming fiction, the police officer not below the rank of Additional Director General of Police in the Special Police Establishment would also be competent to discharge the function of considering grant or non grant of sanction to prosecute any person for offence punishable under the MCOC Act.

23. Indubitably, sub-section (2) of Section 5 envisages that the member of the special force may consequent to issuance of Notification under Section 5(1) discharge the functions of a police officer of the concerned area subject to any orders which the Central Government may make in this behalf. Going by the Notification dated February 9, 2005, the order issued by the Appropriate Authority in exercise of powers under Section 5(1) r/w. Section 6 of the Act of 1946 is only to extend the powers and jurisdiction of the Delhi Special Police Establishment to the whole of the State of Maharashtra for further investigation of the case. Perhaps, out of abundant cautela or extreme caution, the Investigating Officer who is a member of Delhi Special Police Establishment must have been advised to seek sanction from the police officer not below the rank of Additional Director General of Police of State of Maharashtra. The fact that the Commissioner of Police, Brihan Mumbai qualifies the said designation, is not in issue. In other words, the fact that sanction has been accorded to prosecute the Petitioners herein by the Commissioner of Police, Brihan Mumbai, even though the further investigation has been done by the Officer or member of the Special Police Establishment namely, the CBI, the same would be sufficient compliance of Section 23(2) of the MCOC Act. That, however, would be subject to the question whether the same can be considered as a valid sanction or otherwise on other considerations.

24. Reliance has been justly placed by the learned Additional Solicitor General on the decision of the Apex Court in the case of A. C. Sharma Vs. Delhi Administration reported in AIR 1973 SC 913. The provisions of the Act of 1946 have been analysed by the Apex Court and it has been noted that the Scheme of the Act does not either expressly or by necessary implication divest the regular Police authorities conferred on them by under any other competent Law. The Apex Court in Para 12 observed thus :

"................... Section 3 which empowers the Central Government to specify the offences to be investigated by the D.S.P.E. has already been set put. The notification dated November 6, 1956 referred to earlier specifies numerous offences under various enactments including a large number of ordinary offences under I.P.C. Clauses (a) to (J) of this notification take within their fold offences under a number of statutes specified therein. Clause (k) extends the sweep of this notification by including in its scope attempts, abetments and conspiracies in relation to or in connection with the offences mentioned in Clause (a) to (h) and also any other offence committed in the course of those transactions arising out of the same facts. It may also be stated that after 1956 in a number of further notifications the list of the offences specified under Section 3 has increased manifold. We consider it unnecessary to refer to them in detail. According to Section 4 the superintendence of D.S.P.E. vests in the Central Government and Section 5 empowers the Central Government to extend to any area in a State not being a Union territory the powers and jurisdiction of members of this establishment for the investigation of any offences or classes of offences specified under Section 3. Subject to the orders of the Central Government the members of such Establishment exercising such extended powers and jurisdiction are to be deemed to be members of the police force of that area for the purpose of powers, functions, privileges and liabilities. But the power and jurisdiction of a member of D.S.P.E. in such State is to be exercised only with the consent of the Government of the State concerned. The scheme of this Act does not either expressly or by necessary implication divest the regular police authorities of their jurisdiction, power and competence to investigate into offences under any other competent law. As a general rule, it would require clear and express language to effectively exclude as a matter of law the power of investigation of all the offences mentioned in this notification from the jurisdiction and competence of the regular police authorities conferred on them by Cr.P.C. and other laws and to vest this power exclusively in the D.S.P.E.. The D.S.P.E. Act seems to be only permissive or empowering, intended merely to enable the D.S.P.E. also to investigate into the offences specified as contemplated by Section 3 without impairing any other law empowering the regular police authorities to investigate offences." (emphasis supplied)

25. A priori, the fact that the member of the Special Police Force could also have legitimately considered the proposal for grant or non-grant of sanction to prosecute the Petitioners before this Court, would not vitiate the sanction accorded by the Commissioner of Police, Brihan Mumbai who is a member of the Police Force of the State of Maharashtra and otherwise competent to accord such sanction in exercise of powers under Section 23(2) of MCOC Act.

26. The argument of the Petitioners that the member of the same police force which has investigated the criminal case is well equipped to decide on the issue of grant or non grant of sanction to prosecute the accused, clearly overlooks the marked distinction between the process of investigation and the process of grant of sanction. The Authority to accord sanction can be an independent authority to wit; even as per the Scheme of Section 197 of Cr.P.C., sanction is to be accorded by the State of Maharashtra or the Central Government, as the case may be and not by the superior officer of the police force of the State of Maharashtra. In other words, the argument that there is special advantage if the superior officer of the same police force were to consider the proposal for grant or non-grant of sanction to prosecute offences punishable under MCOC Act is without any basis. Suffice it to observe that the mandate of Section 23(2), envisages that it would be sufficient compliance if the police officer not below the rank of additional Director General of Police of the Police Force of Maharashtra were to accord sanction under Section 23(2) of MCOC Act. The fact that, that sanction could also be given by the member of the Special Police Force (CBI), by virtue of the legal fiction provided in Section 5 of the Act of 1946, does not take the matter any further.

POINT NO.(iv) :

27. That takes us to Point No.(iv). The grievance of the Petitioners is that from the admitted facts emerging from the record, it is amply clear that as late as till 6th February, 2006, the stand of the Investigating Officer was that the further investigation was still incomplete and he would require at least one month's time to finalise the case and file report under Section 173(8) of Cr.P.C. before the Court. That was because Letters Rogatory were issued by the Court to U.A.E. and Pakistan and the execution thereof was being pursued with the authorities concerned. On this basis, it was contended that if the investigation was still incomplete, and in any case, there was no changed situation, from the position stated by the Special Judge in his order dated 15th July, 2005, it would necessarily follow that the Sanctioning Authority has accorded sanction without application of mind and more so, under the dictation of the Special Court which gave hint to proceed against the Petitioners. The question as to whether it is a case of non application of mind or for that matter, the sanction order has been passed under dictation of the authority of the Court will be a mixed question of fact and law. That can be addressed at the appropriate stage and certainly not in the present Writ Petitions.

28. We would simply deal with the legal question as to whether there is any inhibition in according sanction before the further investigation was completed. In our opinion, the fact that one charge-sheet has already been filed against the named accused; and even if we were to accept the argument of the Petitioners that the same does not disclose complicity of the Petitioners herein, that however, cannot come in the way of further investigation. The fact that further investigation was undertaken after filing of the first charge-sheet and that too with the permission of the Court is not in dispute. The material gathered during the further investigation would form part of the proposed further police report/supplementary charge-sheet. The Investigating Officer has perhaps already compiled the further police report/supplementary charge-sheet on the basis of the available material. But before presenting the same in Court as required by Section 23(2) of the MCOC Act, he was obliged to obtain sanction of the Competent Authority. He has resorted to that measure. Whether the said supplementary charge-sheet contains enough material to disclose the complicity of the Petitioners in the commission of the alleged offence referred to in the said supplementary charge-sheet, is a matter which will have to be addressed at the appropriate stage. No legal provision has been brought to our notice which would preclude or prohibit according of sanction to file supplementary charge-sheet or further police report under Section 173(8) of Cr.P.C., even when further investigation is still inconclusive. It is not unknown that more than one charge-sheet/police reports are filed in a given case, if the situation so warrants. Even after filing further police report/supplementary charge-sheet, which may be intended to name the Petitioners herein for the first time, as being involved in the commission of the alleged offence referred to therein, it may be open to the Investigating Officer to continue with the further investigation with the permission of the Court and to file further police report/supplementary charge-sheet. It is not necessary for the Investigating Officer to wait until the response on the Letters Rogatory is received from the foreign agency, if he were to be convinced that the material already gathered by him was sufficient to proceed against the Petitioners herein and to file supplementary charge-sheet/further police report in that behalf. Further, after receipt of response from the foreign agency in respect of Letters Rogatory, he may proceed to file further police report/supplementary charge-sheet in addition to already filed, including against the Petitioners herein, after complying with the requisite formalities, if he so desires. We express no opinion in that behalf. We also express no opinion as to whether the proposed supplementary charge-sheet/further police report to be filed by the Investigating Officer on the basis of the sanction accorded by the Commissioner of Police, Brihan Mumbai to prosecute the Petitioners herein in relation to the offence referred to therein, is valid or otherwise. That is a matter which will have to be considered at the appropriate stage. Suffice it to observe that, in law, nothing precludes the Investigating Officer to pursue with the Sanctioning Authority for according sanction to prosecute even before the further investigation is completed.

29. Since much emphasis was placed on the report dated 6th February, 2006 filed by the Investigating Officer, we may only mention that the thrust of the said report is that at the relevant time, the Investigating Officer expected to finalise the case within one month's time, as the response in relation to the Letters Rogatory was likely to be materialized. That however, as aforesaid, would not preclude him in law to move the Sanctioning Authority for according sanction to prosecute the Petitioners herein in connection with the offence referred to in the proposed supplementary charge-sheet/further police report on the basis of the material already available with him. Accordingly, even this contention will have to be stated to be rejected.

POINTS NO.(v) AND (vi) :

30. That takes us to Points No.(v) and (vi). The grievance therein essentially is with regard to the validity of the sanction order on the ground that it has been issued under dictation of the Special Court or that there was no sufficient material on the basis of which the Sanctioning Authority could have arrived at the satisfaction about the nexus or involvement of the Petitioners in the commission of the alleged offence of organized crime. It is premature to entertain such grievance. The sanction order has still not been served on the Petitioners, nor the Investigating Officer has so far filed the supplementary charge-sheet/further police report which would name the Petitioners in the commission of the organized crime or any other offence. It is only after filing of the charge-sheet and placing the sanction order on record of the Special Court, such grievance can be looked into at the appropriate stage. Suffice it to observe that this grievance is premature and cannot be examined in the present Writ Petitions.

31. We are conscious of the argument of the Petitioners that the question regarding validity of sanction can be gone into even at a pre-trial stage. However, the scope of that challenge at the pre-trial stage, would be very limited. If the challenge raises an issue which is mixed question of fact and law, that cannot be decided at pre-trial stage unless the prosecution is given opportunity to lead evidence. We need not dilate on this aspect any further. In our opinion, Point Nos.(v) and (vi) cannot be addressed in the present Writ Petitions. The question whether there is enough material to indicate complicity of the Petitioners in commission of the alleged offence of organized crime or otherwise, is a matter which will have to be agitated by the Petitioners at the appropriate stage. We express no opinion in that behalf.POINT NO.(vii) :

32. Insofar as Point No.(vii) is concerned, the question as to whether the alleged offence took place wholly or partly outside India and if so, is it open to the prosecution to proceed against the Petitioners before this Court, in absence of previous sanction of the Appropriate Authority under Section 188 of Cr.P.C., is also a mixed question of fact and law. In any case, that question need not detain us. It is premature to examine the said grievance. That grievance can be looked into at appropriate stage after the supplementary charge-sheet is filed naming the Petitioners as involved in commission of alleged offence, which according to them, had taken place outside India. Accordingly, we do not wish to elaborate on this point for the reasons already mentioned while dealing with the other points.

POINT NO.(viii) :

33. That takes us to Point No.(viii) which is essentially regarding the grievance about the correctness and validity of the order passed by the Special Court on 26th July, 2005. In our opinion, the said order is a benign order. It merely issues direction to the Special Public Prosecutor to compile the documents to be made over to the Petitioners who in turn would get opportunity. The said exercise was prelude to naming of the Petitioners by the Court as additional accused to be tried along with already named accused in the same criminal case. The primary grievance of the Petitioners was that such course cannot be adopted by the Special Court especially in absence of sanction accorded by the Appropriate Authority to prosecute the Petitioners herein specifically. The other issue was whether the Special Court could have exercised such power by invoking Section 319 of Cr.P.C. and also proceed to record the statements of the Petitioners which can be treated as their defence under Section 313 of the Cr.P.C. ? However, all these questions have receded in the background after the grant of sanction by the Appropriate Authority to prosecute the Petitioners herein in connection with the alleged offence on 26th February, 2006. In the light of the said sanction, the Investigating Officer is now competent to present the supplementary charge-sheet/further police report to name the Petitioners as accused in the pending criminal case. If so, the question as to requirement of prior sanction, which is the quintessence as per Section 23(2) of the MCOC Act, for taking cognizance of offence, does not survive for consideration. As a result, whether the Special Court could invoke powers under Section 319 of the Cr.P.C. at this stage of the proceedings so as to name the Petitioners as additional accused would also not survive for consideration. Similarly, it may not be now necessary to call upon the Petitioners to make their statements which can be treated as their defence under Section 313 of the Cr.P.C.. Instead, if the supplementary charge-sheet/further police report were to be filed which names the Petitioners herein as additional accused, the matter would proceed against them in accordance with law as in the case of already named accused. In the circumstances, we do not wish to delve into the argument regarding the validity and propriety of the opinion recorded by the Special Judge in his order dated 26th July, 2005. Instead, we would make it clear that in the light of the supervening events, in particular, of sanction accorded by the Appropriate Authority to prosecute the Petitioners herein, none of the observations in the said order dated 26th July, 2005 will remain on record and will be treated as effaced without going into the question of correctness of the opinion so recorded. Those questions are left open.

34. That takes us to the question about the validity of the order passed by the Special Judge directing the Petitioners to deposit their passports in Court. Since the prosecution now intends to file supplementary charge-sheet/further police report which would name the Petitioners herein as additional accused to be tried along with the already named accused in connection with the offences referred to in the said charge-sheet, we hope and trust that the Special Court would consider the question regarding the necessity of requirement to deposit passports of the Petitioners herein on its own merits afresh. In our opinion, the said direction in the changed circumstances, need not be considered in the present Writ Petitions. Instead, we leave the question open to be reexamined by the Special Judge as and when the Petitioners would appear before the said Court on the next date of hearing.

35. Insofar as the order passed by the Special Judge issuing non-bailable warrants against the Petitioners before this Court is concerned, the same would remain in abeyance for a period of four weeks from today to enable the Petitioners to appear before the Special Court after giving 48 hours prior notice to the Investigating Officer about such appearance, on which date, it would be open to the Investigating Officer to present the supplementary charge-sheet/further police report. On such further report/supplementary charge-sheet being presented and if the same discloses the name of any of the Petitioner herein, it would be open to the Court to pass such further orders as may be warranted in the fact situation of the case in accordance with law. All questions in that behalf are left open. In other words, the non-bailable warrants already issued against the Petitioners herein in connection with the offence in question shall not be given effect to for a period of four weeks from today.

36. We may place on record that the Petitioners made grievance about false statement made by the CBI before the Special Judge that the stay of proceedings granted by this Court on 17th August, 2005 has been vacated, while considering CBI Application being Application No.110 of 2006 for issuance of non-bailable warrant. The Respondents have offered explanation in that behalf, which is plausible one. The Respondents on the other hand, have made serious grievance as to how the certified copies of the reports submitted by the Investigating Officer to the Court in sealed cover and which were in fact kept in sealed cover, have been issued to the Petitioners. We do not intend to enter into this controversy in the present Writ Petitions. We leave even that question open to be examined by the Special Judge and after due inquiry, take appropriate action as may be advised. We do not express any opinion on either contention of the Petitioners or the Respondents in that regard.

37. For the reasons mentioned hitherto, we proceed to dispose of both the Writ Petitions on the above terms. We keep the question regarding continuation of passports in the custody of the Special Judge as also execution of non-bailable warrants issued against the Petitioners herein open, to be decided by the Special Judge on its own merits in accordance with law afresh. However, the non-bailable warrants shall not be given effect to for a period of four weeks from today with liberty to the Petitioners to appear before the Special Judge within such time after giving 48 hours clear advance notice to the Investigating Officer, who in turn, may be free to present the further police report/supplementary charge-sheet before the Special Judge on such day and pray for appropriate reliefs.

38. We hope and trust that the Special Judge would examine the grievance of the Respondents as to the circumstances in which certified copy of the reports which were tendered by the Investigating Officer to the Special Judge and which were ordered to be kept in sealed cover by the Special Judge came to be issued to the Petitioners and if any irregularity is noticed, is free to take such action as may be advised in accordance with law.

39. Both Petitions are disposed of on the above terms.

Ordered accordingly.