Ashok Gyanchand Vohra Vs the State of Maharashtra and Anr.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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 CRIMINAL WRIT PETITION NO.127 OF 2005

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 WITH

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 CRIMINAL APPLICATION NO.3172 OF 2005.

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 Ashok Gyanchand Vohra ... .. Petitioner

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Vs

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 The State of Maharashtra & Anr. .. Respondents.

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 WITH

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CRIMINAL WRIT PETITION NO.1449 OF 2005

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 Shabbir N.Patel... .. Petitioner

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Vs

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 The State of Maharashtra & Anr. .. Respondents.

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 WITH

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CRIMINAL APPLICATION NO.6297 OF 2005

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IN

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WRIT PETITION NO.127 OF 2005.

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 Ketan Tirodkar ... ... .. Intervenor

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Vs

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 The State of Maharashtra .. Respondents.

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 WITH

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CRIMINAL WRIT PETITION NO.1956 OF 2005

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 Shri R.M.Dhariwal ... .. Petitioner

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Vs

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 C.B.I. & Ors. ... .. Respondents.

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 WITH

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CRIMINAL WRIT PETITION NO.2016 OF 2005

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 Jagdish M.Joshi ... .. Petitioner

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Vs

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 C.B.I. & Ors.... .. Respondents.

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 WITH

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CRIMINAL WRIT PETITION NO.2065 OF 2005

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 Tariq Abdul Karim Parveen.. .. Petitioner

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Vs

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 State of Maharashtra... .. Respondent.

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 Mr R.M.Agarwal with Mr A.M.Sarogi and Mr Girish Agarwal,

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 for the petitioner.

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 Mr Ravi Kadam, Advocate General, with Mr S.R.Borulkar,
 Public Prosecutor with Smt P.H.Kantharia, A.P.P. and Mr
 D.S.Mahispurkar, APP i/by Government Pleader for

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 respondent no.1-State.

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 Ms Asmita Sarangdhar for respondent no.2 in

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 W.P.No.127/05 and for the applicant in Cri.Application

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 No.3172 of 2004

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 Mr Sushilkumar, Senior Counsel with Mr S.K.Jain, Mr
 Rajendra Shirodkar, H.Jain, Lalit Chavan and K.Damle i/b

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 M/s Udwadia Udeshi & Co., for the petitioners in Writ

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 Petition No.1956 of 2005.

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 Mr Shirish Gupte, Senior Counsel, with Mr A.P.Mundargi

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 and Mr S.Gole, for the petitioner in Writ Petition

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 No.2016 of 2005.

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 Mr S.R.Chitnis, Senior Advocate with Mr G.Kulkarni and
 Mr H.Wadake, for the petitioner in Writ Petition No.2065
 of 2005.

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 Mr Prakash Naik, for respondent no.3 in Writ Petition
 No.1449 of 2005.

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 Mr Amit Desai, Senior Counsel with Mr Subodh Desai and
 Mr G. Shenoy i/b M/s.Dhruve Liladhar & Co, for the
 petitioner in Writ Petition No.1449 of 2005.

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 Mrs S.S.Matti, for the applicant in Cri.Application
 No.5984 and 6293 of 2005.

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 Mr Ketan Tirodkar in-person as applicant in
 Cri.Application No.6297 of 2005.

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 Mr Samir A.Vaidya, for the petitioner in Writ Petition
 No.974 of 2005.

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 Mr V.M.Pradhan, for Intervenor in Cri.Application
 No.6399 of 2005.

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 Mr V.M.Thorat, for the applicant in Cri.Application

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 No.6433 of 2005 and in Writ Petition No.2065 of 2005.

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 CORAM : V.G.PALSHIKAR Acg.C.J.,

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 D.B.BHOSALE AND V.K.TAHILRAMANI,JJ.

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 DATE : 22ND DECEMBER, 2005

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Oral Judgment:(Per Palshikar, J.)

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 1. The above writ petitions were heard by us and the
 judgment was reserved. Then I prepared the judgment of
 the Bench in November, 2005 and circulated it to my

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 learned colleagues on the Bench. However to my dismay,
 I was informed by both my colleagues that they do not
 agree with the view taken by me on the presumption that
 they agree with me. I then read the majority view
 rendered by Hon’ble Shri Justice D.B. Bhosale. Having
 given my anxious consideration to the views expressed I
 found it impossible to agree with the majority view.
 Hence this opinion.

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 2. I regret my incapacity to convince my learned
 colleagues to the view that I propagated. In my humble
 opinion, the majority view has the result of virtually
 destroying the safeguards provided under the MCOC Act.
 The majority view reads several things into the Act
 which are not legislated. It has the effect of
 permitting the Special Court under the Act not only to
 take cognizance of private complaint alleging commission
 of offences under the MCOC Act and order investigation
 under section 156(3) of Criminal Procedure Code when
 section 23 of the MCOC Act specifically bars it.

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 3. Special Court is not a Court of Sessions as
 defined by the Code. Section 156 specifically
 contemplates Magistrate empowered under section 190 of
 the Code. Section 190 of the Code speaks only of
 Magistrate. What Magistrate means is defined by the

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 Code and Special Court ’as defined by sections 5 and 6
 certainly is not a Magistrate. But for the provisions
 of sections 5 and 6 of the MCOC Act the Special Court
 contemplated by the Act does not come into existence.
 It is not in the hierarchy of Courts mentioned in the
 Criminal Procedure Code. It is not a Court of
 Magistrate. It is not Court of Sessions. Section 156
 specifically contemplates Magistrate as defined by
 Criminal Procedure Code. The majority view has in
 effect held that Special Court constituted under
 sections 5 and 6 of the MCOC Act is a Magistrate as
 defined by Criminal Procedure Code for the purposes of
 exercising powers under section 156. Such construction
 is impermissible under any established principle of
 statutory interpretation.

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 4. According to the majority view wherever
 legislature intended to prohibit use of the provisions
 of Criminal Procedure Code, 1974 it has specifically
 said so with non-obstante clause. Such clause is absent
 in section 9 and therefore a Special Court functioning
 under section 9 can act under section 156 and order
 inquiry under section 156(3) though it is not a Court of
 Magistrate as defined by the Code. Necessary corollary
 of this view would be that provisions of section 190 of
 Criminal Procedure Code 1974 would apply which

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 specifically prohibits a Court of Sessions which is the
 Court of original jurisdiction as is the Special Court
 under MCOC Act from taking cognizance without committal
 proceedings. If because of absence of non-obstante
 clause provisions of Criminal Procedure Code 1974 are to
 be applied under section 9 then provisions of section
 190 also must apply and committal of proceedings would
 become necessary. The Legislature knew this legal
 position and therefore put the clause under section 9
 which permits a Special Court under the Act to take
 cognizance without committal proceedings. In effect
 according to the majority view a Special Court can
 direct investigation under section 156(3) of the Code
 and can take cognizance of the matter inspite of bar
 under section 23 of the Act.

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 5. The natural consequence of the majority opinion
 would be that any private citizen by mere allegation of
 possible commission of the offences under the Act can
 put the machinery of the State into motion persuading
 the Special Court to make order under section 156(3)
 when that machinery cannot be put into motion by the
 police themselves unless there is an approval under
 section 23(1) of the Act. It provides that even
 information regarding offences would not be recorded
 unless it is approved or sanctioned by a designated

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 officer. Thus, that which cannot be done even by the
 Government of Maharashtra by reason of specific
 prohibition imposed by the Act can be done by a
 Magistrate on a complaint by private citizen by taking
 recourse to section 156 of the Criminal Procedure Code
 though that Special Court is not a Magistrate or Court
 of Sessions as contemplated by Criminal Procedure Code
 1974. According to the majority view therefore if
 police wants to record information regarding commission
 of offence under the Act it will have to take prior
 approval of the designated officer under section 23(1)
 before so recording the information but the police will
 have to do it on complaint made by a private person to a
 Special Court. In effect the bar provided by section 23
 would only partially operate, it will prevent police
 from taking any action without prior approval but will
 be required to take it inspite of that section when the
 complaint is made to a Special Court and he issues a
 direction under section 156 (3). All that is provided
 by section 9(1) of the MCOC Act in effect is empowering
 a Special Court to take cognizance after sanction is
 granted under section 23(2) without there being any
 committal proceedings as contemplated by section 190 of
 Criminal Procedure Code. The effect of the majority
 view would thus run counter to the provisions of section
 156(3) and section 23 of the Act.

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 6. The direction to issue under section 156(3) to
 investigate is issued to Station House Officer of the
 concerned police station. He undoubtedly has the power
 of requesting that the investigation be taken up by
 Senior Officer but he can choose to do it himself which
 would be in clean violation of provisions of section
 23(1) which contemplates an investigation by a person
 not below the rank of Superintendent of Police without
 prior approval of the Director General of Police.

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 7. The majority view in my opinion, substitutes or
 alters the provisions of section 9(1) and section 23.
 It nullifies section 23(1) and permits the Special Court
 to take cognizance inspite of the embargo put by section
 23(2). It thus strikes down the provisions of section
 23(2) to a large extent without there being any prayer
 to that effect. It is for these reasons that I am
 unable to agree with the majority view.

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 8. According to me the question referred has to be
 answered as under :

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Q. Whether in a private complaint filed
under the provisions of Section 9(1) of the
Maharashtra Control of Organized Crime Act, 1999

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designated Court is empowered to order
investigation under section 156(3) of the Code of
Criminal Procedure before approval/sanction is
granted to investigate and take cognizance as
contemplated under section 23 of the said Act?

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A. A designated Court under the MCOC Act
does not have the power to direct investigation
under section 156(3) of the Criminal Procedure
Code in view of the provisions of sections 9 and
23 of the MCOC Act.

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 My reasons for coming this conclusion are as follows:

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 . In this petition Hon’ble Shri Justice V.M.
 Kanade on 23.3.2005 made an order requesting the Chief
 Justice of Bombay High Court to constitute a larger
 bench to resolve the conflict which according to the
 learned Judge existed in the views expressed by two
 Division Benches of this Court in Criminal Appeal
 No.1451 of 2004 and Criminal Writ Petition No.1772 of
 2004. He had framed the following question for
 adjudication by the larger bench. The question reads
 thus:

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 i) Whether in a private complaint filed

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 under the provisions of Section 9(1) of the
 Maharashtra Control of Organized Crime Act, 1999
 designated Court is empowered to order
 investigation under section 156(3) of the Code of
 Criminal Procedure before approval/sanction is
 granted to investigate and take cognizance as
 contemplated under section 23 of the said Act?

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 9. I have heard the learned counsel appearing for
 various parties who put forward their views on several
 aspects touching the above question. Facts giving rise
 to this reference stated briefly are that Criminal
 Appeal No.1451 of 2004 was heard by the Division Bench
 of this court presided over by Hon’ble Shri Justice S.B.
 Mhase. It was dealing with conviction under the
 provisions of Prevention of Terrorism Act, 2002 in an
 appeal in Criminal Appeal No.1451 of 2004. While
 deciding the appeal the Division Bench came across the
 judgment delivered by a Single Judge of this Court which
 is reported in 2004 All Mah. Reports (Criminal) 1689.
 Though the division bench was considering several
 contentions raised before it in the appeal under the
 Prevention of Terrorism Act, it also considered similar
 provisions under the Maharashtra Control of Organised
 Crime Act, 1999 (MCOC) because the similarity was almost
 identical. After considering the provisions the

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 division bench led by Justice Mhase specifically
 disapproved the judgment in Dayanand Nayak’s case
 reported in 2004 All Mah. Reports 1689 (hereinafter
 referred to as Dayanand Nayak’s case) and observed that
 ordering investigation under section 156 of the Code of
 Criminal Procedure in a private complaint filed under
 section 9(1) of the MCOC Act is rendering the provisions
 which required approval for investigation and sanction
 for prosecution redundant. This judgment was pronounced
 by the division bench on 21.12.04. The ratio of this
 judgment, in our opinion, is that no action under the
 provisions of the Prevention of Terrorism Act, 2002 can
 be taken unless there is prior approval for
 investigation and sanction for prosecution as
 contemplated by the provisions of that act. The
 necessary provisions of the Prevention of Terrorism Act
 are contained in sections 29, 50 and 58(1) of that act,
 which according to the bench are similar to the
 provisions of sections 9 and 23 of the MCOC Act.

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 10. Criminal Writ Petition No.1772 of 2004 arose out
 of the provisions of MCOC Act and the order questioned
 therein was the order passed by a designated court
 presumably under section 9 of the MCOC Act directing the
 designated Judge to deal with matters a fresh in the
 light of the observations made by the division bench in

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 that judgment. However asserting that the Special Judge
 can take cognizance of the complaint only after
 requisite sanction is granted by sanctioning authority
 petition was accordingly disposed of. By necessary
 implication the order of the division bench deciding the
 writ petition held that though cognizance of a private
 complaint filed before the designated court cannot be
 taken without previous sanction of the competent
 authority investigation under section 156(3) of Cri.
 P.C. could be ordered. This judgment was pronounced on
 22.12.2004 i.e. on the next day the judgment in
 Criminal Appeal No.1451 of 2004 was pronounced. The
 fact that a division bench of this Court on 21.12.2004
 had specifically overruled the Judgment in Dayanad
 Nayak’s case could not be brought to the notice of the
 division bench presided over by Hon’ble Smt.Justice
 Ranjana Desai which decided Criminal Writ Petition
 No.1772 of 2004. While so deciding the division bench
 was naturally unaware of the fact that factually the
 decision of the learned Single Judge Justice Marlapalle
 stood specifically over ruled by division bench of this
 Court on 21.12.2004. They consequently proceeded to
 pronounce their judgment on 22.12.2004 that a Magistrate
 can order investigation under section 156(3) of the Cri.

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 P.C. But cannot take cognizance of the complaint of
 offences mentioned therein unless sanction of the

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 competent authority under section 23 is obtained.

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 11. Justice Kanade while he was hearing above
 Criminal Writ Petition No.127 of 2005 had the occasion
 to consider both the judgments, one dated 21.12.2004 and
 other dated 22.12.2004. He by his well reasoned concise
 order brought out the differences between the two
 orders, nailed the conflict which obviously existed
 between the two, noticed the factual position due to
 existence of which the conflict might have arisen and
 proceeded to make reference to the Hon’ble Chief Justice
 as sequel of which our bench was constituted and I have
 heard the matter in details apart from hearing learned
 advocates appearing for various parties, I also heard
 Shri Ketan Tirodkar who sought to intervene in this
 matter on the ground that it was his complaint which
 ultimately culminated in the judgment of Dayanand
 Nayak’s case and also other interveners who pointed out
 to us during the course of arguments the necessity of
 holding private complaint under section 9(1)
 maintainable to avoid atrocities of the police under the
 provisions of MCOC Act. I will notice all the arguments
 of the learned counsel at proper places.

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 12. I will now notice the facts giving rise to the
 present Criminal Writ Petition No.127 of 2005 in which

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 this reference to Full Bench is made. I may also
 incidentally note that during the pendency of this full
 bench for hearing several such cases ultimately raising
 the question of maintainability of a private complaint
 under section 9(1) of MCOC Act were filed in this Court
 and ultimately were referred for adjudication along with
 this petition being Criminal Writ Petition No.127 of
 2005. I have also heard the learned advocates appearing
 for parties in each of them. Intervenors were also
 permitted to submit their say generally in all cases.

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 13. The Special Judge which actually is designated
 under the provisions of the MCOC Act, Shri A.P.
 Bhangale was trying Special Case Nos.243 of 2004 and 258
 of 2004 against the accused under the provisions of the
 MCOC Act. During the continuance of the trial
 application was filed by one Nitendra Singh Patil in the
 shape of complaint of offences under MCOC Act and Indian
 Penal Code conjointly. The complaint/application was
 basically targeting several officers of the Bombay
 Police who according to the complainant have committed
 certain offences as defined in the MCOC Act, in addition
 to having committed several other offences under the
 provisions of Indian Penal Code. It would be necessary
 for proper appreciation and adjudication of the above
 referred question to note the prayers made in the

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 application :

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 "1. Hon’ble Court may be pleased to take the
 cognizance of the complaint and process may be
 issued against all the accused above named OR
 alternatively direct the competent police
 authority to register the Complaint under Section
 3(2), 3(3), 3(4), 3(5) 4 and 24 of MCOCA &
 Section 120B, 143, 147, 149, 166, 182, 191, 192,
 193, 195, 196, 218 & 323 read with 34 of I. P.
 C.

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 2. Hon’ble Court may be pleased to allow
 the complaint to rely on the averments made and
 information given in the envelope as part and
 parcel of this Complaint.

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 3. Hon’ble Court may be pleased to call
 upon criminal record of all the Accused persons
 mentioned in the complaint.

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 4. Hon’ble Court may be pleased to call
 upon all the documents of investigation made by
 the Anti Corruption Bureau in CR No.II 3071/2003
 registered at Thane Nagar Police Station, Thane.

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 5. Hon’ble Court may be pleased to call
 upon all the documents of the investigation of CR
 No.I 74/2003 registered at Kasa Police Station,
 Thane Rural.

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 6. Hon’ble Court may be pleased to pass any
 order in favour of the Complaint; in the
 interest of justice.

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 14. It will thus be seen that the complainant in this
 application clearly prayed for the Hon’ble Court to take
 cognizance of the complaint and issue process thereon as
 contemplated by law. The learned Judge entertained this
 complaint, recorded evidence even before taking
 cognizance of framing charge that is to say followed the
 procedure contemplated by section 202 of the Criminal
 Procedure Code and directed the Commissioner of Police
 (Crimes) Mrs.Meera Borwankar to investigate into the
 allegations made in the complaint, he ordered the manner
 in which the investigation should be undertaken by
 Mrs.Borwankar, directing constitution of Special
 Investigation Team and commanded them to report under
 section 156(3) of Cri. P.C.

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 15. This order was impugned before this Court in
 Criminal Writ Petition No.1772 of 2004 of which judgment

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 was delivered by the division bench led by Justice Smt.
 Ranjana Desai on 22.12.2004 holding that though
 cognizance of private complaint under section 9 cannot
 be taken without sanction as contemplated by section 23
 of the MCOC Act the designated Judge or the Special
 Judge appointed under the act could order investigation
 under section 156(3) of Cri. P.C. The order therefore
 quashed the order directing constitution of the Special
 Investigation Team under the leadership of Mrs.Borwankar
 and directed consideration of the matter afresh. This
 was then undertaken by Special Judge Shri Bhangale who
 then passed the impugned order dated 10.1.2005 directing
 investigation by the police in accordance with the
 observations made by the division bench judgment dated
 22.12.2004 in Writ Petition No.1772 of 2004. It is this
 order of the Special Judge which was impugned before the
 learned Single Judge Hon’ble Shri Justice V.M. Kanade
 and while dealing with rival contentions in this
 petition that he noticed the conflict as aforesaid and
 made reference which I will now proceed to consider.

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 16. Criminal jurisprudence of this country is almost
 in its entirety a British Legacy. Indian Penal Code
 defining various offences that can be committed
 providing punishment for commission of those offences
 came into existence as back as in the year 1860. It

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 covered almost all kinds of possible offences that can
 be committed in our country. As the Society and
 Statehood developed criminality also developed and
 offences which could not be covered by the definitions
 provided in the Indian Penal Code were being committed
 giving rise to an urgent need of legislations to take
 care of such criminals committing such crimes which
 during the last 150 years gave birth to various other
 special legislations taking into consideration the
 diversifying aspects of crimes coming into existence
 prior to and after independence of India. It is not
 necessary to dilate any further on this aspect and it
 will be sufficient for our purposes to state that
 legislation of the Maharashtra Control of Organized
 Crimes Act, 1999 was one such legislation needed to
 prevent and destroy organized crime within the State of
 Maharashtra. This obviously is a special legislation
 created to take care of the crimes and special kind of
 criminals perpetrating those crimes as the normal law
 laid down in Indian Penal Code and the procedure in
 which the trials could be made under the Criminal
 Procedure Code, 1973 was considered grossly inadequate
 to deal with such special kind of offences. It is

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 therefore a very strict and effective piece of
 legislation designed to effectively prevent the
 commission of organized crimes in the State of

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 Maharashtra. This aspect that it is special legislation
 created for special purpose is of strict criminal nature
 of strict penal effects will have to be kept in mind
 while interpreting provisions of this act along with
 provisions of normal law of procedure and crime.

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 17. Except for such special legislations as MCOC Act,
 Prevention of Terrorism Act, the repelled Terrorists and
 Dangerous Activities act etc. all crimes covered by the
 Indian Penal Code are required to be tried by all
 encompassing well laid procedure contained in the
 Criminal Procedure Code, 1894 which enactment was
 replaced by Criminal Procedure Code, 1973 and which
 presently is the Code which regulates the procedure for
 criminal trials in India. The Indian Penal Code and the
 Criminal Procedure Code are necessarily therefore the
 general legislations covering the entire field of crimes
 and punishment and procedure only exception being
 special enactments created to meet special situations
 provided special procedures. I have to keep this aspect
 of general law and the aspect of special law mentioned
 earlier in mind for correctly approaching the question
 under reference.

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 18. The Indian Penal Code 1860 defines various
 offences and various punishments. Definitions are

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 contained in Chapter II. The doctrine of punishment in
 criminal jurisprudence is encoded in Chapter III.
 Chapter IV provides general exceptions. Chapter V deals
 with abetment of offences and from Chapter VA states the
 definition and punishment of various offences.
 Categories or classifications of offences have been
 made. Chapter VI deals with offences against the State.
 Chapter VII deals with offences relating to the army,
 navy and air force. Chapter VIII deals with offences
 against the public tranquility. Chapter IX deals with
 offences by or relating to public servants. Chapter IXA
 relates to offences relating to elections. Chapter X
 deals with offences pertaining to contempt of lawful
 authority of public servants. Chapter XI deals with
 offences of false evidence and offences against public
 justice. Chapter XII deals with offences relating to
 coin and Government stamps. Chapter XIII deals with
 offences relating to weights and measures. Chapter XIV
 deals with offences affecting the public health morality
 etc. Chapter XV deals with offences pertaining to
 religion. Chapter XVI deals with offence affecting the
 human body. Chapter XVII deals with offences against
 robbery. Chapter XVIII pertains to offences relating to
 documents and property marks. Chapter XIX deals with
 offences pertaining to criminal breach of contracts.
 Chapter XX deals with offences relating to marriage.

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 Chapter XXI deals with offences of defamation. Chapter
 XXII deals with criminal intimation etc. It will thus
 be seen that the entire Indian Penal Code defines and
 prescribes punishment for various kinds of offences
 touching almost all aspects of human life.

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 19. The procedure of conducting the trial and
 punishing those persons who have committed offences
 under the Indian Penal Code is prescribed by Criminal
 Procedure Code. It also exhaustively deals with what
 procedure should be for conducting trial on any of the
 offences mentioned in the Penal Code. I will therefore
 notice those provisions which deal with conduct of such
 trials, hierarchy of Courts and the procedure of taking
 cognizance as provided by this act. However before
 proceeding with that exercise it is necessary to note
 the schedule to the Code which gives in nut shell a
 chart regarding the offences, punishment whether its
 cognizable, bailable or non-bailable and by which Court
 it is triable. In this schedule all the offences
 mentioned in the Indian Penal Code are stated.
 Ultimately it provides for classification of offences
 under other laws and states how they are to be tied,
 whether they are cognizable or not, states the Court
 which can try them. This part of schedule therefore
 takes care of offences not defined in the Indian Penal

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 Code but are made offences by any other legislation in
 the country which creates the offence, prescribes the
 punishment but does not provide procedure with which the
 trial is to be conducted. Care is therefore taken to
 provide procedure and trial of such offences also.
 Legal position in this regard is well settled. Wherever
 there is special procedure prescribed by special
 enactment then the procedure so prescribed shall prevail
 over the general procedure. In the instant case it is
 MCOC Act and the procedure laid down by it which will
 prevail over the general procedure prescribed in the
 Criminal Procedure Code, 1973. I will presently notice
 how the MCOC Act creates a complete procedure for
 conduct of investigation and trial of offences created
 by it.

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 20. Section 2(d) of the Criminal Procedure Code,
 1973, hereinafter referred to as "Code" defines what the
 complaint is. According to it a complaint means any
 allegation made oral or in writing to a Magistrate with
 a view to histaking action under this Codethat some
 person has committed an offence. It will be seen that
 complaint is an allegation made to the Magistrate
 recording commission of offence and that Magistrate
 taking action under this Code in relation to those
 allegations. In Criminal Jurisprudence wherever the

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 word "complaint" is not defined it would be necessary to
 read this definition for understanding what a complaint
 is. The word "complaint" is used in section 9 of the
 MCOC Act but is not defined there and therefore it will
 have the meaning given to it by section 2(d) of the
 Code.

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 21. Section 2(g) of the Code defines what an inquiry
 is. It means every inquiry other than a trialconducted
under this Codeby a Court or a Magistrate. Therefore
 every enquiry under any provision of the act other than
 a trial is to be undertaken by the Court or Magistrate
 as defined by the Code. Here the words "Court" and
 "Magistrate" are to be kept in mind.

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 22. Section 6 of the Code provides for classes of
 Criminal Courts, that shall be constituted under the
 law. As of necessity therefore criminal courts in India
 apart from the High Court can be Court of Sessions,
 Court of Judicial Magistrate and Court of Metropolitan
 Magistrate. These therefore are the Courts or
 Magistrates who can direct inquiries as defined by
 section 2(g) in any matters. It does not therefore
 encompass or contemplate any other Court of criminal
 jurisdiction than those defined in the Code.

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 23. However after enactment of the MCOC Act in 1999
 Special Courts are required to be established as a
 matter of procedure prescribed by that act. After
 coming into force of this act therefore in the State of
 Maharashtra there would be four courts; (i) Court of
 Sessions, (ii) Court of Judicial Magistrate; (iii)
 Court of Metropolitan Magistrate and (iv) Special Court
 constituted under section 5 of the act having
 jurisdiction as defined by section 6 of the act. Thus,
 but for the provision of section 5 of he MCOC Act a
 Special Court as contemplated by section 5 thereof could
 not have come into existence. The Special Court in
 Bombay therefore owes its existence to section 5 of the
 MCOC Act only and it is this Court which I must keep in
 mind while answering the question as to its having
 jurisdiction to take cognizance of a private complaint
 under section 9 of the MCOC Act.

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 24. Sections 24 and 25 of the Code empower the State
 to appoint Public Prosecutors and Additional and
 Assistant Public Prosecutors for conducting of trials in
 the Court under the Code. A perusal of these provisions
 would make crystal clear that the State of Maharashtra
 cannot use the power given to it under sections 24 and
 25 to appoint a special Public Prosecutor in the Court
 of Special Judge appointed under section 5 of the MCOC

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 Act. The intention of the Legislature in this regard is
 obvious from the specific provision made in the MCOC Act
 by section 8 thereof. It empowers the State Government
 to appoint person to be a Public Prosecutor or an
 Additional Public Prosecutor for the Special Court. The
 section also provides for the qualification necessary
 for such an appointment. Thus, a Special Court other
 than the Courts contemplated by the Code is created by
 MCOC Act, a Special Public Prosecutor is required to be
 appointed under the provisions of the MCOC Act without
 taking recourse to sections 24 and 25 of the Code for
 conducting trials under the Act.

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 25. Then I must notice provisions of section 4 of the
 Code. It provides by sub-section (1) that all offences
 under the Indian Penal Code shall be investigated,
 inquired into, tried and otherwise dealt with according
 to the provisions hereinafter contained. It then
 provides by sub-section (2) of section 4 with regard to
 offences under any other law. It prescribes that all
 offences under any other law shall be investigated,
 inquired into, tried and otherwise dealt with according
 to same provisions viz. Provisions of Criminal
 Procedure Code but subject toany enactment for the time
 being in force regulating the manner or place of
 investigating, inquiring into, trying or otherwise

¶144

 -26-

¶145

 dealing with such offences. The words "regulating the
 manner of inquirying into" need special attention. It
 is therefore ordained by section 4 of the Code that any
 inquiry into any offence defined under any other law
 shall normally be in accordance with the provisions of
 the Code but shall always be subject to any enactment
 for the time being in force regulating the manner of
 inquiring to the offences mentioned in that act. From
 section 4 of the Code it is therefore clear that
 wherever any special enactment or any special provision
 is made regulating the manner of inquiry and
 investigation into the offence it is that special
 provision that will prevail and not the provisions of
 the Code. I will note the special provisions made in
 the MCOC Act. In this relation it will be obvious that
 the special offences mentioned in this special enactment
 must be dealt with under that act itself.

¶146

 26. Then I must notice section 26 of the Code which
 provides for Courts by which offences are triable. It
 begins with the words "subject to other provisions of
 this Code" viz. Criminal Procedure Code any offence
 under the Indian Penal Code may be tried by the High
 Court or Sessions Court or any other court by which such
 offence as shown in the first schedule is triable. Then
 by sub-section (b) of section 26 it is provided that any

¶147

 -27-

¶148

 offence under any other law shall, when any Court is
 mentioned in this behalf in such law, be tried by such
 Court and if no court is so mentioned, may be tried by
 High Court or any other court by which such offence
 shown is triable. This provision therefore necessarily
 means that any offence under the MCOC Act is tribal only
 by such court as is created by that act. This provision
 of section 26 is required to be noted because the
 contention raised is that though its a special court
 created under the MCOC Act it can take recourse to the
 provisions of the Code for conducting trial or
 investigation or inquiry under the act. Any complaint
 of any offence under the MCOC Act is therefore required
 to be tried by such court as is established under the
 MCOC Act. A combined reading of section 26(b) and 4(2)
 of the Criminal Procedure Code would lead to inevitable
 conclusion that any offence under the MCOC Act can be
 tried only by that Court created under that act and the
 procedure to govern the conduct of inquiry and
 investigation and trial shall be that prescribed by MCOC
 Act and not the general provisions of the Code. Section
 5 of the MCOC Act specifically empowers the State
 Government to create by a notification in the official
 gazette one or more special courts for trial of persons
 accused to have committed any offence under this act.
 Procedure of appointment is stated in detail in section

¶149

 -28-

¶150

 5. It will thus be seen that a special court
 constituted under section 5 of the MCOC Act is a special
 court and not a criminal court as defined by Criminal
 Procedure Code. It is because of this power under
 section 5 that the category of special courts under
 section 5 of the MCOC Act has come into existence in the
 State of Maharashtra and it is the power of this special
 court which is to be examined to find out whether he can
 entertain a private complaint and take cognizance
 thereon of the offences mentioned therein. For doing
 so, it would be necessary therefore to take into
 consideration the provisions of special act viz. the
 MCOC Act. However before I proceed to consider the
 provisions of MCOC Act in details I also should notice
 some other provisions of the Criminal Procedure Code for
 elucidating the answer to the question referred.
 Section 39 of the Code which makes it a duty of every
 person to inform commission offence to Magistrate or a
 police officer. Therefore complaint as defined by
 section 2(d) of the Code has to be made by a person who
 acquires any knowledge of commission of any offence to a
 Magistrate or a police officer. I will advert to this
 aspect of section 9 of the Code at later stage when I
 deal with the submissions made at the bar regarding not
 rendering any person remedy less or expose him to
 hazards of police atrocities.

¶151

 -29-

¶152

 27. Section 154 of the Code provides for the manner
 in which information regarding cognizable offence is to
 be recorded. Clause (3) thereof takes care of complaint
 of cognizable offence where the police do not act as
 contemplated by the section. Then section 156 provides
 the power to police officer to investigate and empowers
 the Magistrate under section 190 to order any such
 investigation under section 156(3). At this juncture I
 must notice section 3 of the Code which deals with
 construction of references to certain legislations
 mentioned in the Code. It provides that in this Code
 any reference to a Magistrate shall be a reference to a
 judicial magistrate, any reference to a Metropolitan
 Magistrate shall be a reference to a Metropolitan
 Magistrate. Similarly references to the words
 "Magistrate", "Courts" etc. in the Code appearing in
 other enactments is also stated and it deals with the
 Magistrates, Chief Judicial Magistrates, Metropolitan
 Magistrate or Chief Metropolitan Magistrate. It nowhere
 provides for construction of a reference to a special
 court as established under section 5 of the MCOC Act.
 Consequently the power to direct investigation or
 inquiry under section 156(3) of the Code can be
 exercised by a Magistrate as provided by section 190 of
 the Code. The word Magistrate occurring in section 190

¶153

 -30-

¶154

 has to be construed by reason of section 3 as reference
 to Judicial Magistrate in relation to an area etc. to a
 Metropolitan Magistrate in relation to a metropolitan
 area. The word Magistrate occurring in the provisions
 of section 190 cannot therefore have reference to any
 other Court or authority but to a Magistrate defined and
 appointed under the Code. It is obvious that a special
 court appointed under section 5 of the MCOC Act can
 certainly not be construed or referred to as a
 Magistrate while considering provisions of section 190
 or 156(3) of the Code. It is pertinent to note that
 section 3 which deals with the construction of
 references to certain Courts does not even refer to or
 provide for construction of reference to a Court of
 Sessions because Criminal Procedure Code envisages
 committal proceedings to precede the trial of case
 triable by Court of Session and it is taking into
 consideration this aspect of criminal trial provided by
 Criminal Procedure Code that required framing of section
 9 of MCOC Act in a particular manner. It specifically
 says in that section that a special court may take
 cognizance of any offence without the accused being
 committed to it for trial. What is provided for by
 section 9 therefore is a power to the special court
 created under the act to take cognizance of any offence
 under the act without requirement of committal of

¶155

 -31-

¶156

proceedings. But for this provision and provision of
 procedural requirement under the special enactment an
 offender under the act would have been tried under the
 provisions of the Code first by a Magistrate who under
 section 190 could take cognizance, order investigation
 under section 156 and then make an order of discharge or
 committal as the situation requires. For dealing with
 special offences created by special enactment this
 procedure of committal was thought unnecessary, the act
 having provided special procedure by the phrase "A
 special court maytake cognizance of any offence without
 the accused being committed to it for trial". I have to
 consider the question of power of this special court to
 order investigation under section 156(3) of the act. I
 will have to examine the provisions of MCOC Act in this
 perspective.

¶157

 28. However before proceeding to deal with specific
 procedural aspects of MCOC Act it is necessary that
 reference to certain provisions of the Code is complete.
 Section 173 of the Code requires a police officer to
 report on completion of investigation or inquiry to a
 Magistrate empowered under section 190. It is only the
 Magistrate empowered under section 190 who can order
 investigation under section 156(3) and it is only to
 such Magistrate that the police would make a report

¶158

 -32-

¶159

 under section 173. Reference to word Magistrate has to
 be to a Magistrate as defined in the Code. There cannot
 be any reference to a special court for special
 cognizance except by a procedure as provided by special
 enactment.

¶160

 29. Provisions of section 190 empower the Magistrate
 as defined by the Code to take cognizance of any offence
 he can take cognizance of even offences which are not
 triable by him. But he cannot take cognizance of
 offence under the MCOC Act because MCOC Act empowers
 only a special court created under section 5 to take
 cognizance in accordance with provisions of sections 9
 and 23 thereof. The special court created under section

¶161

 5 of the MCOC Act cannot therefore take recourse to
 provisions of section 190 of the Code as it empowers
 only a Magistrate as defined in the Code to take
 cognizance or order investigation or inquiry.

¶162

 30. Then I must notice provisions of section 193 of
 the Criminal Procedure Code. It specifically bars any
 court of Sessions from taking cognizance of any offence
 as Court of original jurisdiction unless the case is
 committed to it by a Magistrate. The legislature was
 aware of this bar under section 193 of the Code and
 therefore it enacted section 9 in the form that it has

¶163

 -33-

¶164

 been enacted and provided that special court can take
 cognizance of offence under the special act without
 there being any requirement of committal because by
 reason of section 193 even the Court of Sessions cannot
 take cognizance of offence unless committed to it by
 Magistrate under the act. Section 9 does away with
 requirement of this committal and empowers the special
 court by providing that it may take cognizance of
 offence under the special act without it being committed
 to the special court. The word "may" used in section 9
 is therefore an intentional use of a correct word.

¶165

 31. Then section 200 of the Code speaks of a
 Magistrate who can take cognizance of a private
 complaint. It speaks of a Magistrate and not a sessions
 court or special court created by special enactment.
 Under section 200 it is only Magistrate to be construed
 by reference to section 3 of the Code as Magistrate to
 specified area who can entertain private complaint under
 section 200. Provisions analogous to such contained in
 section 200 are absent in the MCOC Act. It will be
 clear from the provisions of Chapter XV which contains
 section 200. Section 202 empowers the Magistrate to
 enquire into the case complained of either by himself or
 directing investigation to be made by police officer
 thus invoking the provisions of section 156(3) of the

¶166

 -34-

¶167

 Code. A direction to police officer under section
 156(3) to investigate or inquire can therefore be issued
 only by a Magistrate as defined in the Code and not by a
 special court without specifically being empowered to
 that effect and such empowering is provided by special
 enactment in clause (4) of section 9 of that enactment.
 A situation may arise where a Magistrate takes
 cognizance of certain complaint disclosing offence under
 the Indian Penal Code triable by the Court of Sessions
 and the Court of Sessions i.e. the Sessions Judge is
 also nominated and appointed as Special Court under
 section 5 of the act. Act also provides that a Special
 Court appointed under the act shall be competent to try
 offences under the Indian Penal Code also. It is to
 meet with such a situation that the word "may" is used
 in section 9. Section 9 provides that a Special Court
 may take cognizance of offences under the act or may
 take cognizance on a matter being committed to it by a
 Magistrate acting under section 190 of Criminal
 Procedure Code but he shall always have the power to
 take cognizance of offences under the MCOC Act when
 accompanied by sanction under section 23 of the act
 without there being proceedings for committal.

¶168

 32. That takes us to the consideration of the
 provisions prescribing procedure under the MCOC Act.

¶169

 -35-

¶170

 The Maharashtra Control of Organized Crimes Act, 1990
 was enacted to make special provisions for prevention of
 control of and for coping with criminal activities by
 organized crime syndicate and or gang and for matters
 connected therewith or incidental thereto. It is
 necessary to note the statement of aims and objects for
 this enactment.

¶171

 "Organised crime has for quite some years now
 come up as a very serious threat to our society.
 It knows no national boundaries and is fueled by
 illegal wealth generated by contract killings,
 extortion, smuggling in contrabands, illegal
 trade in narcotics, kidnappings for ransom,
 collection of protection money and money
 laundering, etc. The illegal wealth and black
 money generated by the organised crime is very
 huge and has serious adverse effect on our
 economy. It is seen that the organised criminal
 syndicates make a common cause with terrorist
 gangs and foster narco terrorism which extend
 beyond the national boundaries. There is reason
 to believe that organised criminal gangs are
 operating in the State and thus, there is
 immediate need to curb their activities.

¶172

 -36-

¶173

 It is also noticed that the organised criminals

¶174

 make extensive use of wire and oral
 communications in their criminal activities. The
 interception of such communications to obtain
 evidence of the commission of crimes or to
 prevent their commission is an indispensable aid
 to law enforcement and the administration of
 justice.

¶175

 2.The existing legal frame work i.e. the penal
 and procedural laws and the adjudicatory system
 are found to be rather inadequate to curb or
 control the menace of organised crime.
 Government has, therefore, decided to enact a
 special law with stringent and deterrent
 provisions including in certain circumstances
 power to intercept wire, electronic or oral
 communication to control the menace of the
 organised crime".

¶176

 It will be seen that the existing penal procedural laws
 of adjudicating system was considered to be inadequate
 for controlling the menace of organized crime and
 therefore this special law was enacted with stringent
 and deterrent provisions for controlling the menace of
 organized crime. It then proceeded to prescribe the

¶177

 -37-

¶178

 procedure for implementation of the provisions of the
 act and conduct of trial under the act. It would
 therefore be obviously improper and impermissible to
 take recourse to the procedural law which the State
 while enacting MCOC Act itself found to be inadequate
 for empowering the court created under that act. It
 also provides for specific procedure for implementation
 of that act. It must be borne in mind that the
 procedure viz. Criminal Procedure Code was considered
 inadequate by the State for controlling the menace of
 organized crime. I must therefore be conscious of this
 fact while considering the question whether special
 court created under the act can take recourse to such
 provisions under section 156 or 202 of the Criminal
 Procedure Code.

¶179

 33. Section 1 of the act makes it applicable
 throughout the State of Maharashtra. It came into force
 on 24.2.1999. Section 2 deals with definitions.
 Section 3 deals with forfeiture of properties and
 punishment for certain offences created by the act, so
 is section 4.

¶180

 34. Then comes section 5 which empowers Government of
 Maharashtra to constitute by a notification in the
 Official Gazette one or more special courts for dealing

¶181

 -38-

¶182

 with cases arising out the provisions of the act. The
 section elaborately provides the manner in which the
 court is to be established. It provides for concurrence
 of the Chief Justice of Bombay High Court, for
 appointment of a presiding officer on the special court.
 It lays down the classification, it states the duties of
 special court and then by section 6 thereof provides
 jurisdiction of the court in which it is said that
 notwithstanding anything contained in the Code every
 offence punishable under this act viz. MCOC Act, shall
 be triable only by the special court within whose local
 jurisdiction it was committed. It therefore effectively
 bars a court of sessions established under the Code of
 Criminal Procedure from trying any offence under the act
 unless Court of sessions or the presiding officer
 thereof is specifically nominated under section 5 by a
 notification published in the official gazette by the
 State Government. By necessary implication a special
 court created under section 5 has jurisdiction only
 under section 6 to do what section says. The special
 court having this special jurisdiction therefore cannot
 take recourse to the provisions of Code for the purposes
 of ordering investigation as such procedure was
 considered inadequate by the framers of this act.
 Section 7 then empowers special court to try other
 offences also so that there is no unnecessary

¶183

 -39-

¶184

 protraction of trial.

¶185

 35. Section 8 then provides for appointment of Public
 Prosecutors. Procedure also is prescribed. It is
 consequently obvious that unless a public prosecutor is
 duly appointed in accordance with the provisions of
 section 8, the public prosecutor appointed under
 sections 24 or 25 of the act cannot act as public
 prosecutor of the special court established under
 section 5 of the act having jurisdiction under sections
 6 and 7 of the act.

¶186

 36. Then comes the crucial section, section 9. It
 prescribes the procedure and powers of special court.
 Sub-section 1 thereof provides that special court may
take cognizanceof any offence without the accused being
 committed to it for trial upon receiving complaint of
 facts which constitute such offence or upon a police
 report of such facts. It will be seen that section 9
 not only empowers the special court to take cognizance
 of any offence under the act but also empowers it to
 take cognizance of any offence even those not mentioned
 in this act. This can be done by special court without
 waiting for committing proceedings to take place in
 relation to offence not covered by the act. It is
 therefore provided that the special court may take

¶187

 -40-

¶188

 cognizance of any offence whether under the act or under
 the Penal Code. Therefore it provides that he may do so
 upon receiving a complaint or police report. The
 questions which requires our opinion is what he should
 do on receiving such a complaint which obviously is as
 defined under section 2(d) of the Code and does not
 include a complaint made to the police, which is taken
 care of by the police report. In our opinion, it is in
 the light of this discussions that a special court
 established under section 5 of the MCOC Act having
 jurisdiction under sections 6 and 7 of that act can
 receive a complaint as defined by section 2(d) of the
 Code. In fact the real question is what he can do after
 receipt of such complaint. Whether he can direct
 investigation under section 156(3) of the Code as is
 done by the impugned order or transmit the complaint for
 being dealt with in accordance with provisions of MCOC
 Act. I will get the answer to this by referring further
 provisions of the act.

¶189

 37. Sub-sections 2 and 3 of section 9 of the MCOC Act
 provide for the manner in which the trial will be
 conducted and then sub-section 4 empowers the special
 court with all the powers of the court of sessions to
 try such offence as if it were a court of sessions and
 for so doing it may exercise all powers of court of

¶190

 -41-

¶191

 sessions. The entire code of Criminal Procedure nowhere
 empowers the court of sessions to order investigation
 under section 156(3). Such an order can be made only by
 a Magistrate contemplated by section 190. A special
 court or court of sessions obviously is not a Magistrate
 as contemplated by section 190 of the code. In our
 opinion, therefore a special court established under
 section 5 of the MCOC Act having jurisdiction under
 sections 6 and 7 of that has no power to order
 investigation into a complaint of any offence whether
 under the MCOC Act or the Indian Penal Code. A cohesive
 reading of section 9 and its sub sections 1 to 4 would
 thus establish that special court will function within
 the limits prescribed by section 9 and have the powers
 given to it by section 9. Section 10 gives precedence
 to the trials by special courts.

¶192

 38. Then I must notice the provisions of section 11.
 It gives power to the special court to transfer cases to
 regular courts. It reads thus:

¶193

 "11. Power to transfer cases to regular

¶194

Courts.---- Where, after taking cognizance of an
 offence, a Special Court is of the opinion that
 the offence is not triable by it, it shall,
 notwithstanding that it has no jurisdiction to

¶195

 -42-

¶196

 try such offence, transfer the case for trial of
 such offence to any Court having jurisdiction
 under the Code and the Court to which the case is
 transferred may proceed with the trial of the
 offence as if it had taken cognizance of the
 offence."

¶197

 Section 11 quoted above thus empowers a special court to
 transfer the case not triable by it to a Court of proper
 jurisdiction. It will be seen that section 7 empowers
 the Court to try other offences also. Section 5
 provides that special Court shall be presided over only
 by Sessions Judge or Additional Sessions Judge. By
 necessary implication the offence, trial of which could
 be taken up by special court even though they are not
 offences punishable under the act would be trials of
 offence triable exclusively by court of sessions as
 prescribed under the schedule to the Code. Consequently
 where after taking cognizance of an offence as provided
 for by section 23 of the MCOC Act it comes to the
 knowledge of the special court that an offence appears
 to have been committed but it cannot try it as it is not
 triable either by court of sessions or by special court
 it shall have the power to transfer to appropriate court
 viz. the Magistrate and in such eventuality cognizance
 shall be deemed to have been taken as provided by

¶198

 -43-

¶199

 section 11. A Magistrate can take cognizance within the
 four corners of section 190 of the Code beyond that he
 cannot do anything further. Section 11 therefore
 provides that in such case the cognizance will be deemed
 to have been taken. It thus takes care of a private
 complaint made to a special court of which the special
 court takes cognizance via section 23 and provides that
 in such eventuality the offence triable by the
 Magistrate shall be deemed to have been taken cognizance
 of and special court shall have the power to transfer it
 to the appropriate Magistrate. It cannot therefore be
 said that a person filing a complaint under section 9 is
 remedy less or the special court is power less to deal
 with it. How it should do it is provided by further
 sections.

¶200

 39. In this case I am not concerned with sub-sections
 12, 13, 14, 15 and 16 having been struck down by this
 Court. Section 17 creates a certain presumption.
 Section 18 makes certain confessions specified in it
 admissible in evidence. Section 19 provides for
 protection of eye-witnesses. This provision requires
 notice. Why was it necessary for the Legislature of
 Maharashtra to specifically provide protection to
 witness. In my opinion, it was so thought necessary,
 taking into consideration the seriousness of the

¶201

 -44-

¶202

 offences or the organized crime syndicate, the power
 which it yields and the serious threat it can pose to
 witnesses and the power to come before the Court and do
 their duties under section 39 of the Code and depose
 before the Court their knowledge about the incident.
 The State legislature was aware of vast power of the
 organized crime syndicate therefore it provided
 specifically for a protection of witness.

¶203

 40. By section 20 it provided for forfeiture and
 attachment of property connected with offence or
 offender. This provision also requires notice. In
 earlier point of time the Indian Penal Code did have
 provisions which permitted attachment or forfeiture of
 properties connected to a crime. But as the welfare
 activities in the State grew rights of persons connected
 by blood to a criminal, but not involving in the
 criminality as that criminal, were regarded as separate
 section of the society which could not be penalized for
 no fault of their’s. Though these provisions are
 deleted from the Code or Indian Penal Code they were
 reenacted by section 20 as stringent measures were
 necessary to prevent organized crime. It is this
 stringent and strict nature of the enactment which must
 be kept in mind while interpreting the provisions of
 this act particularly while considering necessity of

¶204

 -45-

¶205

 cognizance as contemplated by section 23 of the act.

¶206

 41. Section 21 then provides for modification of
 certain provisions of the Criminal Procedure Code. This
 obviously points out that the provisions of Criminal
 Procedure Code are not mutatis mutandis applicable to
 offences or trials or investigations under the act and
 wherever necessary specific provisions have been made
 applicable or barred or modified. Section 22 then
 provides for certain other things. It will be seen from
 the aforesaid provisions in fact from the entire
 enactment that its object is to prevent or control
 organized crime. For doing so, stringent overriding
 powers are given to the Courts appointed under the Act.
 The possibility of such stringent provisions harming
 innocent citizens cannot be overlooked and has not been
 overlooked by Maharashtra Legislature. It therefore
 specifically framed section 23 of the act which reads as
 under :

¶207

"23.Cognisance of, and investigation into, an
offence.----- (1) Notwithstanding anything

¶208

 contained in the Code, ------

¶209

 (a) no informationabout the commission of an
 offence or organized crime under this Act, shall

¶210

 -46-

¶211

be recordedby a police officer without the prior
 approval of the police officer not below the rank
 of the Deputy Inspector General of Police;

¶212

 (b) no investigation of an offence under the
 provisions of this Act shall be carriedout by a
 police officer below the rank of the Deputy
 Superintendent of Police.

¶213

 (2) No Special Courtshall take cognizance of any
 offence under this Act without the previous
 sanctionof the police officer not below the rank

¶214

 of Additional Director General of Police".

¶215

 It provides for the manner in which cognizance of
 offence or investigation into offence is to be done.
 The Legislature has noticed and has taken serious note
 of the fact of possible misuse of the provisions of this
 act, which are very stringent in nature, has to be
 strictly avoided. Therefore there has to be, of
 necessity, strict interpretation of the provisions of
 this act. That they are penal needs no saying, that
 they are stringent is obvious and therefore they
 required strict interpretation and implementation is
 also obvious. I must keep this in mind when I proceed
 to analyze further provisions of section 23. It begins

¶216

 -47-

¶217

 by saying notwithstanding anything contained in the Code
 and then says no informationabout the commission of an
 offence of organise crime under this act shall be
recordedby the police officer without prior approval of
the officer not below the rank of Deputy Inspector
General of Police. It prohibits even recording of
 information pertaining to commission of crime as defined
 by the act by the Police Officer. It bans any
 investigation into such offence under the act except by
 a police officer of the rank of Deputy Superintendent of
 Police and above. If the police whose ordinary duty is
 to take information, recording commission of offence as
 contemplated by section 154 and investigate it under
 section 156 of the act cannot do something as required
 of them under the Code how can a Special Court not
 covered by the provisions of the Code take notice of the
 complaint and order investigation. It will not be
 possible to hold in the circumstances that a Special
 Court can direct investigation under section 156(3) of
 the Code because that cannot be directed even by
 Superintendent of Police. I also cannot equate a
 Special Court which is presided over by a Sessions Judge
 to a Deputy Inspector General of Police. I also cannot
 imagine a Special Court to be a police officer of the
 rank of Deputy Superintendent of Police who can take
 note of the information of commission of offence under

¶218

 -48-

¶219

 the MCOC Act and order investigation after approval is
 received. It is then provided by subsection 2 that no
 Special Court shall take cognizance of offence under
 this act without previous sanction of the police officer
 not below the rank of Additional Director General of
 Police. Information may be received, recorded or
 investigation may be conducted by Deputy Superintendent
 of Police with previous approval of Deputy Inspector
 General of Police but sanction to take cognizance can be
 given only by Additional Director General of Police the
 second highest police officer in the State of
 Maharashtra. If a Special Court cannot take cognizance
 of offence without previous sanction of the Additional
 Director General of Police how can it act and record
 information of commission of such crime and direct
 investigation which is the power given to an officer
 subordinate to the Additional Director General of
 Police.

¶220

 42. In my opinion the word "may" used in section (1)
 is used deliberately. For a cohesive reading of section
 and proper interpretation thereof "may" will have to be
 read as "may". Section 9(1) is legislated to overcome
 ban under section 193 of the Criminal Procedure Code
 which says no Court can take cognizance except under
 section 190. To do away with the necessity committal

¶221

 -49-

¶222

 proceedings for the special kind of offences mentioned
 in the act it is provided that the special court may
 take cognizance of any offence when taking committal of
 it for trial. It is a permissive provision which but
 for its existence could have prevented a special court
 from taking cognizance of any offence defined under the
 act. This can be considered from a different angle
 also. Section 25 of the MCOC Act provides that the
 provisions of the act and the rules will have overriding
 effect for any other law for the time being in force if
 it is viz. any other law inconsistent with the
 provisions of this Act. Therefore notwithstanding
 anything contained in section 193 of the Criminal
 Procedure Code a special Court can take cognizance of an
 offence under the act in a manner provided by the act.
 There is yet another angle which supports my
 interpretation that the word "may" occurring in
 sub-section (1) of section 9 must be read as "may". A
 Special Court under section 9 may take cognizance of an
 offence on a private complaint or on police report
 postulates existence of sanction under section 23(2).
 If there is no sanction under section 23(2) of the MCOC
 Act the Court acting under section 9 cannot take
 cognizance. Therefore where there is sanction it may
 take cognizance where there is a complaint the Court may
 take cognizance even without committal proceedings The

¶223

 -50-

¶224

 use of the word "may" is as observed above to avoid bar
 to section 193 of Criminal Procedure Code and to prevent
 a Magistrate from taking cognizance in cases where there
 is no sanction under section 23(2) of the MCOC Act.

¶225

 43. As I have already noticed the provisions of MCOC
 Act were considered by the Division Bench of this Court
 in the case of Saquib Abdul Hamid Nachan V. State of
Maharashtra & Ors., (Criminal Appeal No.1451 of 2004) as
 the same were similar to the provisions of Prevention of
 Terrorism Act, 2002 which that bench was considering.
 In para 12 it noticed the provisions of sections 9 and
 23 while dealing with the Judgment of the learned Single
 Judge of this Court reported in 2004 ALL.MR (Cri) 1689
 wherein the learned Single Judge had taken a view that
 though cognizance under section 23 of the MCOC Act
 cannot be taken without previous sanction the Special
 Court has power to make precognisance investigation and
 therefore can issue an order of investigation under
 section 156(3). The Division Bench of this Court while
 dealing with correctness of that judgment observed that
 the judgment does not lay down correct law and has given
 its reasons for so holding. I am in respectful
 agreement with the observations made by the Division
 Bench. They read as under:

¶226

 -51-

¶227

 "The reasoning as is evident on reading paragraph
 17 of the judgment which is quoted above, suffers

¶228

 from drawback and puts the State and Central
 Governments in embarrassing position. The Single
 Judge has lost the sight of the fact that the
 order dismissing the complaint is not a final
 order under the law and it can be very well
 challenged before this court and the Apex Court
 by filling appropriate proceedings. If the
 superior courts come to the conclusion that the
 order of dismissal of such complaint by the
 special court was erroneous one, then there is a
 finding of the Superior Court or record that
 there is a case for taking cognizance. In such a
 situation, at the most the superior court in view
 of Section 50, may direct the complainant to
 approach the State Government or the Central
 Government for getting a sanction to prosecute,
 so that the Special Court can exercise a power of
 taking cognizance under section 29. However, at
 that stage, in view of the directions of the
 Superior Courts if the Complainant approaching
 the State or Central Government, the State
 Government or Central Government cannot ignore
 the finding of the superior court’s and they are
 called upon to take decision whether to grant

¶229

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¶230

 sanction or not to grant. In the backdrop of the
 finding recorded by the Superior Court that there
 is a case for taking cognizance and thereby not
 only the Central Government and State Government
 are placed in an embarrassing position but the
 exercise of powers under section 50 of the
 appropriate State Government becomes an empty
 formality. The matter becomes a fait accompali
 for both the governments. Same result equally
 follows in case Special Court comes to the
 conclusion that there is a case for taking
 cognizance but is cannot be taken because here is
 no sanction under section 50 and issue direction
 to complainant to approach the appropriate
 Government to get sanction under section 50 of
 the POTA Act. Therefore, the appropriate way for
 filling such prosecution is to approach to the
 appropriate Government for getting a sanction and
 if the sanction is granted, thereafter to file
 the complaint under section 29 of which Special
 Court can take cognizance. Any other procedure,
 as submitted by the learned counsel and revealed
 from the reasoning as given by the Single Judge
 above, is not conducive to the judicial propriety
 and especially to the right of the appropriate
 government to consider the case for grant of

¶231

 -53-

¶232

 sanction or not to grant it. The scheme of the
 Act does not permit any other procedure except
 the procedure as we envisage from the provisions
 of the Act."

¶233

 From the above quotation which I respectfully approve it
 is obvious that the scheme of the act does not permit
 any other procedure except that prescribed by the Act.
 Our analysis of the provisions made herein before is in
 consonance with the observation made by the Division
 Bench. I am therefore supported by the view taken by
 the Division Bench which I respectfully approve.

¶234

 44. Similar question of taking cognisance by Special
 Court was considered by the Supreme Court of India in
 the case of Gangula Ashok & Anr. v. State of A.P.,
(2000) 2 SCC 504. The Supreme Court there was
 considering the provisions of Schedule Caste and
 Schedule Tribes (Prevention of Atrocities) Act, 1989,
 section 14 of which provides for Special Court taking
 cognizance and the Supreme Court found on consideration
 of the entire provisions that a Special Court under that
 Act cannot take cognizance directly as Court of origin
 jurisdiction without a case being committed to it by a
 Magistrate in view of section 193. Thus it will be seen

¶235

 -54-

¶236

 from the ratio of the above case that section 193 of the
 Criminal Procedure Code is complete bar to taking
 cognizance by any Court of origin jurisdiction without
 it being committed to it by a Magistrate. Thus, my view
 that cognizance cannot be taken without the previous
 sanction would be fortified in view of the ratio of this
 case. This judgment also fortifies my view with regard
 to meaning of the words "may take cognizance without
 being committed to it" in section 9 of the MCOC Act. It
 is therefore that the word "may" has to be read as
 "may". In this very case the Supreme Court has observed
 in para 16 as under :

¶237

 "16. Hence we have no doubt that a Special
 Court under this Act is essentially a Court of
 Session and it can take cognizance of the offence
 when the case is committed to it by the
 Magistrate in accordance with the provisions of
 the Code. In other words , a complaint or a
 charge-sheet cannot straight away be laid down
 before the Special Court under the Act."

¶238

 45. From the above it is clear that the bar contained
 in section 193 of Criminal Procedure Code is complete.
 No Special Court or Court of original jurisdiction can
 directly take cognizance of any matter without it being

¶239

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¶240

 committed to that Court. Consequently, it was essential
 that the special legislation viz. MCOC Act contains
 provision to over ride this bar under section 193 of
 Cri. P.C. and it is for this reason that section 9 of
 the MCOC Act is so worded to provide or empower the
 Special Court under that Act to take cognizance of any
 offence under the Act without there being committal
 proceedings. It does not do away with the requirement
 of sanction prior to cognizance as contemplated by
 section 23.

¶241

 46. Several judgments of the Supreme Court of India
 and other High Courts were cited before us in support of
 the contention that no cognizance can be taken by
 Special Court without prior sanction of the authority
 mentioned in the statute. These judgments considered
 various statutes where such requirement as Special
 Courts is mentioned. I need not deal with each of the
 case cited as all the decisions are similar in their
 ratio which says that such cognizance without prior
 sanction cannot be taken. There is yet another and
 substantial reason for not considering in detail the
 various judgments cited at the Bar. Very recently the
 Supreme Court of India had occasion to consider similar
 provisions under Terrorist and Disruptive Activities
 (Prevention) Act, 1987 in the case of Mukhtiar Ahmed

¶242

 -56-

¶243

Ansari v. State (NCT of Delhi), 2005 SCC (Cri.) 1037.
 Section 20A of TADA reads as under :

¶244

 "20A. Cognizance of offence" (1) Notwithstanding
 anything contained in the Code, no information
 about the commission of an offence under this Act
shall be recordedby the police without the prior
 approval of the District Superintendent of
 Police.

¶245

 (2) No courtshall take cognizance of any offence
 under this Act withoutthe previous sanctionof
theInspector-General ofPolice, or as the case
 may be, the Commissioner of Police."

¶246

 These provisions are almost identical to the provisions
 of section 23 of the MCOC Act which read as under :

¶247

"23.Cognisance of, and investigation into, an

¶248

offence.----- (1) Notwithstanding anything
 contained in the Code, ------

¶249

 (a) noinformationabout the commission of an
 offence or organized crime under this Act, shall
 be recorded by a police officer without the prior

¶250

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¶251

 approval of the police officer not below the rank
 of the Deputy Inspector General of Police;

¶252

 (b) noinvestigation of an offence under the
 provisions of this Act shall be carriedout by a
 police officer below the rank of the Deputy
 Superintendent of Police.

¶253

 (2) No Special Courtshall take cognizance of any
 offence under this Act without the previous
sanction of the police officer not below the rank
 of Additional Director General of Police."

¶254

 It will be seen that the only difference between the two
 sections is that under TADA no information about
 commission of offence under that act can be recorded
 without prior approval of the District Superintendent of
 Police, whereas under MCOC Act it is prior approval of
 the Deputy Inspector General of Police which is
 required. In the above referred judgment the Supreme
 Court of India has exhaustively considered the several
 judgments of the Supreme Court given prior to that
 judgment and after extensively analysing the provisions
 has come to the conclusion that prior approval under
 section 20A is a condition precedent for registering a
 case under TADA for recording information about

¶255

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¶256

 commission of offence under that Act. I have noticed
 above the similarity in section 20A of TADA Act and 23
 of MCOC Act. The ratio of the Supreme Court judgment in
 Mukhtiar Ahmed Ansari’s case above must therefore apply
 mutatis mutandi to section 23 of the MCOC Act. It will
 not be permissible for the High Court to take any other
 view on the provisions of section 23 in view of the
 interpretation by the Supreme Court of India on the
 provisions of section 20A of TADA Act. I have already
 pointed out in details how in our opinion, also sections
 9 and 23 of the MCOC Act are required to be interpreted
 in the manner indicated above. In my humble opinion, my
 view in this regard as exhaustively discussed above, is
 fortified by the ratio of Mukhtiar’s case. It is
 because of this judgment and Article 141 that I do not
 feel it necessary to consider in detail several other
 judgments cited at the Bar and which were considered by
 the Supreme Court of India in the above referred
 judgment.

¶257

 47. Yet another important aspect which must be kept
 in mind while interpreting the provisions of the MCOC
 Act is the nature of crimes defined by it, punishments
 prescribed by it and the gravity of the offences to
 cover which this enactment was legislated. I must
 always keep in mind that this Act was legislated to make

¶258

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¶259

 special provisions for prevention and control of and for
 coping with criminal activities by organized crime
 syndicate or gang. The offences defined by the Act are
 serious and grave. The penalties are severe. It
 confers several powers on the police. It makes
 confessions made in certain situations admissible when
 entire general law on the point makes such confessions
 inadmissible. The totality of the fact of the powers
 conferred by this Act on the police is enormous and,
 therefore, it has provided for safeguards against misuse
 of this power by the police. Those safeguards are
 contained in Section 23 of the MCOC Act, which prohibits
 even recording of an information regarding an offence
 under the Act without the previous approval of the
 Deputy Inspector General of Police and this is so
 notwithstanding anything contained in the Code. To hold
 that in spite of this embargo the police can investigate
 or record information or make inquiry under Section
 156(3) of the Code is to commit complete violence with
 the language of Section 23 of the MCOC Act, which is
 impermissible in law.

¶260

 48. There is another aspect to this. But for such
 provision as contained in Section 23(1) (a) and (b) of
 the MCOC Act, recourse could have been taken to Section
 156 of the Code and a Station House Officer, who usually

¶261

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¶262

 is a Police Officer, could have recorded the information
 or organized crime, proceeded to make inquiry, file
 challans in the Court of a Magistrate and the Magistrate
 can take cognizance of the offence. Section 9 of the
 MCOC Act does not contemplate taking of cognizance by a
 Magistrate. These safeguards are provided by Section 23
 of MCOC Act to prevent misuse of these powers under the
 MCOC Act by police officers generally. Even recording
 of information, therefore, is made subject to prior
 approval of a police officer not below the rank of
 Deputy Inspector General of Police. Permitting a
 Special Court to order on a private complaint inquiry or
 investigation under Section 156(3) of the Code is to do
 away with this precaution taken by the legislature as a
 protection from unwarranted use of the provisions of the
 MCOC Act. Therefore, it is not permissible to hold that
 a Special Court under the MCOC Act can direct
 investigation or inquiry under Section 156(3) of the
 Code.

¶263

 49. Similarly, no investigation or inquiry of an
 offence under the MCOC Act shall be carried by a police
 officer below the rank of a Deputy Inspector General of
 Police. Section 156 of the Code contemplates inquiry
 and investigation by a Station House Officer, who is
 always below the rank of a Deputy Inspector General of

¶264

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¶265

 Police. Even though it is open to a Station House
 Officer, who is a Police Inspector, to transit such
 investigation to a Deputy Superintendent of Police, it
 is open for him to do it by himself, in which case it
 will be a clear breach of Section 23(1) (b) of the MCOC
 Act. When there is a statutory prohibition
 notwithstanding anything contained in the Code to record
 information or to investigate, to permit such recording
 or investigation by use of Section 156(3) of the Code
 would be illegal and, therefore, impermissible. Such
 interpretation would be causing great violence to the
 language and intention of the legislation. It will take
 away the protection granted by the Act to people from
 possible misuse of the provisions of the Act. I have
 already observed above the disastrous results that will
 take place by holding that on a private complaint, a
 Special Court under the MCOC Act can direct
 investigation by police under section 156(3) of the Code
 and looking to the seriousness of the issues involved, I
 would like to repeat what I have already said. If it is
 held permissible for a Special Court to direct
 investigation under section 156(3) of the Code on a
 private complaint, what will happen is that any person
 can file a private complaint before the Special Court
 under the MCOC Act. The said Court, though it is not a
 Magistrate as defined in the Code and contemplated by

¶266

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¶267

 Section 156(3) of the C ode directs investigation or
 inquiry under Section 156(3) and on receipt of the same
 takes cognizance of it without there being a sanction.
 It nullifies the entire provision of Section 23 of the
 MCOC Act. Apart from that, it destroys the protection
 given to citizens from possible misuse of the MCOC Act.

¶268

 50. Taking into consideration all these aspects I am
 of the opinion that the question referred to us will
 have to be answered in negative that is to say:

¶269

 "Q. Whether in a private complaint filed under
the provisions of Section 9(1) of the Maharashtra
Control of Organized Crime Act, 1999 designated
Court is empowered to order investigation under
section 156(3) of the Code of Criminal Procedure
before approval/sanction is granted to
investigate and take cognizance as contemplated
under section 23 of the said Act?

¶270

A. A designated Court under the MCOC Act does
not have the power to direct investigation under
section 156(3) of the Criminal Procedure Code in
view of the provisions of sections 9 and 23 of
the MCOC Act."

¶271

 -63-

¶272

 This answer by me to this question referred to above
 therefore necessarily creates another question as to
 what would happen when a complaint of offence as
 prescribed under the act is made in writing or orally to
 the designated court directly. This aspect was
 emphasized by several learned advocates appearing before
 us. The fear was expressed that in such a situation the
 private complainant would be remedy-less and will have
 to tolerate atrocities of the authorities concerned
 under the act without a Forum where he can complain
 about it. In my opinion, all such fears are baseless.
 I have already pointed out above that a complaint can be
 made to a designated Court of any offence as defined in
 that act being committed by any person. In the event of
 such complaint being made to a designated court all that
 is required of the learned Judge to do is to transmit
 that complaint to the Deputy Inspector General of Police
 of the area concerned for being dealt with in accordance
 with law. On such receipt of the complaint the Deputy
 Inspector General of Police would issue his necessary
 prior approval to the concerned police officer for
 recording information about the commission of offence of
 the crime under the act. That police officer if he
 himself is of the rank of Deputy Superintendence of
 Police or above him carry out investigation himself, or
 may direct another officer not below the rank of Deputy

¶273

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¶274

 Superintendent of Police to carry out investigation. On
 completion of investigation the police officer who is
 designated officer will file the report before the
 Additional Director General of Police who thereafter
 would consider the report and may grant sanction under
 section 23(2) to take cognizance which then would be
 transmitted to the special court designated under the
 act and whereupon the Court shall take cognizance of the
 complaint of fact as originated by the complaint
 initially filed before it.

¶275

 51. It will be seen that section 9(1) itself
 stipulates that cognizance can be taken in two
 situations; (i) upon receiving a complaint of facts
 which constitutes such offence and (ii) upon a police
 report of such facts. A cohesive reading of the
 provisions of sections 9 and 23 would result in
 transmission of the complaint so received to the
 designated police officer who will then with approval
 conduct investigation and not only go to the Additional
 Director General of Police for consideration of grant of
 sanction but on receipt of such sanction, if granted,
 matter would come back to the Special Court. When the
 police report of such facts is filed it will have to be
 accompanied by appropriate order of sanction before the
 special court can take cognizance of such offence. It

¶276

 -65-

¶277

 cannot therefore be said that an individual who wants to

¶278

 make a complaint of an offence under the act is
 remedy-less. I will again revert to the provisions of
 section 39 of the Criminal Procedure Code which makes it
 a duty of ever person aware of commission of offence to
 report the matter to the police. It is therefore
 possible that the person who acquires such knowledge
 goes to the police but his complaint is turned down. In
 such an eventuality, which may be rare, it is open for
 the complainant to then file criminal complaint before
 the designated court upon receipt of such complaint the
 designated court or special court will follow the
 procedure which I have indicated above. Consequently it
 cannot be said that any person aggrieved of any offence
 being committed under the act being remedy-less.
 Adequate remedies exit in the Act as it stands.

¶279

 52. To sum up I restate my conclusions:

¶280

 (i) a complaint as contemplated by section 2(d)
 of Cri.P.C. that can be filed by any individual
 before special court designated under the act;

¶281

 (ii) on receipt of such complaint the learned
 special court would transmit the same to the
 Deputy Inspector General of Police of the range

¶282

 -66-

¶283

 from which the complaint emanates for appropriate
 action under section 23(1);

¶284

 (iii) The Deputy Inspector General of Police to
 whom such complaint is forwarded will then apply
 his mind and grant approval to appropriate
 officer mentioned in section 23(1)(a) to record
 information about commission of offence as it
 emanates from the complaint and then order
 investigation by an officer not below the rank of
 Deputy Superintendent of Police as contemplated
 by section 23(1)(b);

¶285

 (iv) on completion of investigation the report
 shall be placed before the Additional Director
 General of Police for consideration of the
 question regarding grant of sanction to take
 cognizance, who on application of his mind to the
 report and the facts as disclosed thereby will
 grant or refuse as the case may be previous
 sanction to take cognizance of the matter under
 section 9(1) of the act;

¶286

 (v) it is on receipt of such police report
 accompanied by sanction under section 23(2) that
 the Court will take cognizance under section

¶287

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¶288

 9(1). From the above it will be seen that that
 being the procedure prescribed under the Act
 section 9(1) says that a special court may take
 cognizance. To illustrate a special court cannot
 take cognizance if the report placed before it is
 not accompanied by a sanction .

¶289

 53. I would therefore allow the writ petition No.127
 of 2005 and set aside the order impugned therein. I
 would also allow Writ Petition No.1449 of 2005 and set
 aside the order impugned therein. In so far as other
 writ petitions are concerned mentioned in the cause
 title, having regard to the fact that my view is
 minority opinion, I would direct those petitions to be
 placed before appropriate bench for adjudication of the
 same in the light of the observations made in majority
 view.

¶290

 sd/-

¶291

 (V.G.PALSHIKAR, ACG.C.J.)

¶292

 -68-

¶293

ORAL JUDGMENT : (Per D.B.Bhosale,J. for himself and
for V.K.Tahilramani,J.)

¶294

 54. We have had the benefit of reading the Judgment
 proposed by V.G.Palshikar,Acg.C.J. With due respect, we
 cannot persuade ourselves to agree with the opinion
 expressed and the reasons recorded in support thereof in
 the said judgment, hence this separate opinion. The
 judgment of V.G.Palshikar,Acg.C.J.has elaborately dealt
 with the facts, arguments advanced by the learned
 counsel and relevant provisions of law. Hence, we
 consider it unnecessary to reproduce the facts including
 the arguments advanced on behalf of the parties except
 to make a reference to the same to the extent necessary
 in the course of this Judgment.

¶295

 55 The conflict in the views on the question,
 referred to for adjudication by the larger bench, was
 between the Division Bench consisting of Smt.Ranjana
 Desai and A.S.Oka, JJ., which pronounced the judgment on
 22.12.2004 in Criminal Writ Petition No.1772 of 2004,
 and the judgment pronounced on 21.12.2004 in Criminal
 Appeal No.1451 of 2003 by the Division Bench consisting
 of S.B.Mhase and A.V.Mohta,JJ. Both the Division
 Benches, while pronouncing the law on the question, made
 reference to the judgment of the learned Single Judge

¶296

 -69-

¶297

 (B.H.Marlapalle,J.) in Dayanand B.Nayak Vs. Ketan
K.Tirodkar and Anr, 2004 All.M.R.(Cri) 1689. The
 Division Bench in Criminal Writ Petition No.1772 of 2004
 finally concurred with the view of the learned Single
 Judge in Dayanand B.Nayak’s case whereas the Division
 Bench in Criminal Appeal No.1451 of 2003 differed and
 took the exact contrary view.

¶298

 56. The Division Bench in Criminal Writ Petition
 No.1772 of 2004 while upholding the ratio laid down in
Dayanand B.Nayak’s case, in paragraph 39 of the judgment
 recorded the following conclusions:

¶299

 (a) The Special Court under the MCOCA is a court of
 original criminal jurisdiction.

¶300

 (b) A sanction under section 23(2) of the MCOCA is a
 sine-quo-non for taking cognizance of a private
 complaint.

¶301

 (c) The Special Court cannot take steps under Chapter
 XV of the Code unless the sanction is obtained.
 However, prior to the sanction, it can take resort to
 section 156(3) of the Code.

¶302

 (d) As per section 9(4) of the MCOCA, for the purpose

¶303

 -70-

¶304

 of trial, the Special Court will have all the powers of
 a Court of Sessions as far as may be, in accordance with
 the procedure prescribed in the Code for the trial
 before a Court of Sessions.

¶305

 57. The Division Bench in Criminal Appeal No. 1451
 of 2003 after expressing their disagreement with the
 ratio laid down in Dayanand B.Nayak’s case observed that
 the Special Court cannot take cognizance of a complaint
 unless there is a sanction under section 50 of the
 Prevention of Terrorism Act,2002 (for short, "POTA").
 The only option open to the Special Court is to direct
 the complainant to approach the appropriate government
 to get the sanction under section 50 of POTA, and if the
 sanction is granted, may proceed to file complaint under
 section 29 of POTA of which the Special Court can take
 cognizance. It was further observed that "any other
 procedure, as observed or revealed from the reasoning
 given by the learned Single Judge in Dayanand B.Nayak’s
 case, would not be conducive to the judicial propriety
 and especially to the right of the appropriate
 government to consider the case for grant of sanction or
 not to grant it". The differentiation in the cases
 which were for consideration before the Division Benches
 may be noticed. The Division Bench in Criminal Writ
 Petition No.1772 of 2004 was directly dealing with the

¶306

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¶307

 provisions of MCOCA whereas the Division Bench in
 Criminal Appeal No.1451 of 2003 was dealing with the
 provisions of the POTA. Against this backdrop, the
 aforesaid question has been referred to the larger Bench
 by the learned Single Judge vide order dated 23.3.2005.

¶308

 58. The core question, referred to for our

¶309

 consideration, is of great importance. We, therefore,
 heard the learned counsel for the parties in all the
 petitions/applications at great length. Some other
 important questions were also posed during the
 discussions. We propose to make reference to all such
 questions and deal with them in the course of this
 Judgment at appropriate places.

¶310

 59. Before we proceed further, let us make a
 reference to the Judgment of the Supreme Court in

¶311

Reserve Bank of India Vs. Peerless General Finance and

¶312

Investment Co.Ltd (1987) 1 Supreme Court Cases 424. In

¶313

 that judgment, while interpreting the provisions of the
 statutes which were under consideration of the Supreme
 Court, it was observed that "Interpretation must depend
 on the text and the context. They are the bases of
 interpretation. One may well say that if the text is
 the texture, context is what gives the colour. Neither
 can be ignored. Both are important. That

¶314

 -72-

¶315

 interpretation is best which makes the textual
 interpretation match the contextual. A statute is best
 interpreted when we know why it was enacted. With this
 knowledge, the statute must be read, first as a whole
 and then section by section, clause by clause, phrase by
 phrase and word by word. If a statute is looked at, in
 the context of its enactment, with the glasses of the
 statute-maker, provided by such context, its scheme, the
 sections, clauses, phrases and words may take colour and
 appear different than when the statute is looked at
 without the glasses provided by the context. With these
 glasses we must look at the Act as a whole and discover
 what each section, each clause, each phrase and each
 word is meant and designed to say as to fit into the
 scheme of the entire Act. No part of a statute and no
 word of a statute can be construed in isolation.
 Statutes have to be construed so that every word has a
 place and everything is in its place". It is, thus,
 clear that basic principle of interpretation is that a
 statutory provision should be construed ’according to
 the intent of the legislature and normally, such intent
 is gathered from the language of the provision as
 observed by the Supreme Court in Chief Justice of A.P.
Vs.L.V.A. Dixitulu (1979) 2 SCC 34. Keeping these
 rules of interpretation in view, we would like to deal
 with the question of law referred to for our

¶316

 -73-

¶317

 consideration.

¶318

 60. It would also be advantageous to glance through

¶319

 the Statement of Object and Reasons (for short,"SOR")
 which is supposed to be a key to unlock the mind of
 legislature in relation to substantive provisions of
 statutes. The SOR to MCOCA and other enactments, such
 as POTA and the Narcotic Drugs and Psychotropic
 Substances Act, 1985 (for short, "NDPS") having
 stringent provisions, are not similar. The backdrop in
 which the MCOCA was introduced will have to be borne in
 mind. The MCOCA was enacted and brought into force on
 24.4.1999. The SOR of MCOCA record that "the organised
 crime has for quite some years now come up as a very
 serious threat to our society. It knows no national
 boundaries and is fueled by illegal wealth generated by
 contract killings, extortion, smuggling in contrabands,
 illegal trade in narcotics, kidnappings for ransom,
 collection of protection money and money laundering,
 etc". It further records that "the illegal wealth and
 black money generated by the organised crime is very
 huge and has serious adverse effect on our economy. It
 is seen that the organised criminal syndicates make a
 common cause with terrorist gangs and foster narco
 terrorism, which extend beyond the national boundaries.
 There is reason to believe that organised criminal gangs

¶320

 -74-

¶321

 are operating in the State and thus, there is immediate
 need to curb their activities". It was also noticed
 that the organised criminals make extensive use of wire
 and oral communications in their criminal activities.
 The interception of such communications to obtain
 evidence of the commission of crimes or to prevent their
 commission is an indispensable aid to law enforcement
 and the administration of justice. It further proceeds
 to note that the existing legal frame work, i.e. the
 penal and procedural laws and the adjudicatory system
 are found to be rather inadequate to curb or control the
 menace of organised crime. The Government, therefore,
 decided to enact a special law with stringent and
 deterrent provisions including in certain circumstances
 power to intercept wire, electronic or oral
 communication to control the menace of the organised
 crime. Keeping this in view we now proceed to address
 the question referred to and the questions incidental
 thereto.

¶322

 61. At the outset, we would like to consider a
 question, raised by Mr Amit Desai, learned counsel for
 the petitioner in Criminal Writ Petition No.1449 of
 2005, whether or not a private complaint under section
 9(1) of MCOCA is tenable. Section 9(1) empowers a
 Special Court to take cognizance of any offence without

¶323

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¶324

 the accused being committed to it for trial either upon
 receiving a "complaint" of facts which constitute such
 offence or upon a "police report" of such facts. The
 word "complaint" and the expression "police report"
 occurring in this section have not been defined in
 MCOCA. Sub-section (2) of Section 2 provides that
 "words and expressions" used but not defined in MCOCA
 and defined in the Code shall have the meanings
 respectively assigned to them in the Code of Criminal
 Procedure, 1973 (for short, "the Code"). The Code
 defines the word "complaint" and the expression "police
 report" in clauses (d) and (r) in section 2 thereof.
 "Complaint" means any allegation made orally or in
 writing to a Magistrate, with a view to his taking
 action under the Code, that some person, whether known
 or unknown, has committed an offence, but does not
 include a police report. It may be noticed that no form
 is prescribed which the complaint must take. It may
 only be said that there must be allegations which prima
 facie disclose the commission of an offence with the
 necessary facts for the Magistrate to take action. The
 definition of "complaint" specifically excludes a
 "police report". "Police report" as defined in clause
 (r) of Section 2 of the Code means a report forwarded by
 a police officer to a Magistrate under sub-section (2)
 of Section 173 of the Code. Section 173 of the Code

¶325

 -76-

¶326

 provides for a report of police officer on completion of
 investigation under Chapter XII. Sub-section (2)(i) of
 section 173 provides that the officer-in-charge of the
 police station shall forward to a Magistrate empowered
 to take cognizance of the offence on a "police report"
 as soon as the investigation is completed in the form
 prescribed by the State Government, containing all the
 particulars mentioned in clauses (a) to (g) thereof.
 Clause (b) speaks about the nature of "information".
 The word "information" used in clause (b) means "First
 Information Report" which would be a part of "police
 report".

¶327

 62. In A.R.Antulay Vs. Ramdas Sriniwas Nayak and
Anr, 1984 (2) SCC 500 the Supreme Court while dealing

¶328

 with the provisions of the Prevention of Corruption Act,
 observed that it is a well recognised principle of
 criminal jurisprudence that anyone can set and put the
 criminal law into motion except where the statute
 indicating or creating an offence indicates to the
 contrary. It was further observed that the scheme of
 the Code envisages two parallel and independent agencies
 for taking criminal offences to Court. Even for a
 serious offence of murder a private complaint can, not
 only be filed but, be entertained and proceeded with
 according to law. Keeping this enunciation in view and

¶329

 -77-

¶330

 the definition of "complaint" in section 2(d) and the
 language employed in sub-section (1) of Section 9, we
 have no hesitation in holding that the word "complaint"
 occurring in sub-section (1) of Section 9 means a
 private complaint. Moreover, there is no contra
 indication in MCOCA preventing an individual from filing
 a complaint. The further question raised in these
 petitions, therefore, is what course the special Court
 should adopt if it receives a private complaint. In
 other words, whether it is open for the special Court to
 direct investigation under section 156 (3) by
 overlooking the provisions of clause (a) and (b) of
 sub-section (1) of Section 23 of MCOCA and that the
 previous sanction under section 23(2) is sine-qua-non
 for taking cognizance of such complaint.

¶331

 63. To address the core question a scrutiny of all
 the relevant provisions of the Code would be necessary
 for better appreciation of the submissions of the
 learned counsel for the parties.

¶332

 64. Section 2(d) and 2(r) of the Code, as

¶333

 aforestated, define "complaint" and "police report".
 Section 2 (c) defines "cognizable offence" which means
 an offence for which, and "cognizable case" means a case
 in which, a police officer may, in accordance with the

¶334

 -78-

¶335

 First Schedule or under any other law for the time being
 in force, arrest without warrant. Section 6 in Chapter
 II of the Code, which deals with constitution of
 Criminal Courts, provides for classes of Criminal Courts
 and stipulates that besides the High Courts and the
 Courts constituted under any law, other than this Code,
 there shall be, in every State, the following classes of
 Criminal Courts:- (i) Courts of Session; (ii) Judicial
 Magistrates of the first class and, in any metropolitan
 area, Metropolitan Magistrates; (iii) Judicial
 Magistrates of the second class and (iv) Executive
 Magistrates. Section 26 in Chapter III, which deals
 with the powers of Courts, provides for Courts by which
 offences are triable. Clause (b) of Section 26 provides
 that any offence under any law shall, when any Court is
 mentioned in this behalf in such law, be tried by such
 Court and when no Court is so mentioned, may be tried by
 the High Court or any other Court by which such offence
 is shown in the First Schedule to be triable. The
 offence under MCOCA is triable by the Special Court
 constituted under section 5 of MCOCA. It is thus clear
 that the special court constituted under section 5 of
 MCOCA is covered by Section 26(b) of the Code. Section
 36 in Chapter IV deals with the powers of superior
 officers of police. It provides that police officers
 superior in rank to an "officer-in-charge of a police

¶336

 -79-

¶337

 station" may exercise the same powers, throughout the
 local area to which they are appointed, as may be
 exercised by such officer within the limits of his
 station. Officer-in-charge of a police station, defined
 in clause (o) of section 2, includes the police officer
 present at the station-house who is next in rank to such
 officer and is above the rank of a constable when the
 officer-in-charge of the police station is absent from
 the station-house or unable from illness or other cause
 to perform his duties, or, when the State Government so
 directs, any other police officer so present.

¶338

 65. Then it must be noticed that whenever a complaint
 within the meaning of section 2(d) is received by a
 Magistrate he has two options to follow under the
 provisions contained in Chapter XII and Chapter XIV of
 the Code. Chapter XV of the Code further provides the
 procedure when a Magistrate decides to take cognizance
 under section 190 (1)(a) in Chapter XIV of the Code.

¶339

 66. Chapter XII of the Code, which comprises sections
 154 to 176, relates to information to police and their
 powers to investigate. Section 154 deals with
 information in cognizable cases. Section 156 of the
 Code with which we are primarily concerned in this group
 of writ petitions reads thus:

¶340

 -80-

¶341

 "156. Police officer’s power to investigate
 cognizable cases -- (1) Any officer in charge of
 a police station may, without the order of
 Magistrate, investigate any cognizable case which
 a Court having jurisdiction over the local area
 within the limits of such station would have
 power to inquire into or try under the provisions
 of Chapter XIII.

¶342

 (2) No proceeding of a police officer in any
 such case shall at any stage be called in
 question on the ground that the case was one
 which such officer was not empowered under this
 section to investigate.

¶343

 (3) Any Magistrate empowered under section
 190 may order such an investigation as
 above-mentioned".

¶344

 This section deals with the powers of police officer to
 investigate cognizable cases. Sub-section (3) with
 which we are concerned in particular, provides that any
 magistrate empowered under section 190 to take
 cognizance of the offences, may order such investigation
 as contemplated under sub-section (1) of Section 156.
 On completion of investigation undertaken under section
 156 (1) the officer-in-charge of the police station is
 required under section 173(2) to forward to a Magistrate
 empowered to take cognizance of the offence on a "police
 report", a report in the form prescribed by the State
 Government containing all the particulars mentioned
 therein.

¶345

 -81-

¶346

 67. Chapter XIV of the Code lays down the conditions
 requisite for initiation of proceedings by the
 Magistrate. Section 190(1) which occurs in Chapter XIV
 may be reproduced at this stage which reads thus:

¶347

 "190. Cognizance of offences by Magistrates --

¶348

 (1) Subject to the provisions of this Chapter, any
 Magistrate of the first class, and any Magistrate of the
 second class specially empowered in this behalf under
 sub-section (2), may take cognizance of any offence --

¶349

 (a) upon receiving a complaint of facts
 which constitute such offence;

¶350

 (b) upon a police report of such facts;

¶351

 (c) upon information received from any
 person other than a police officer, or upon his
 own knowledge, that such offence has been
 committed".

¶352

 A plain reading of this section would show that under

¶353

 sub-section (1) any Magistrate of the first class or any
 Magistrate of the second class specially empowered "may
 take cognizance" of any offence (a) upon receiving a
 complaint of facts which constitutes such offence; (b)
 upon a "police report" of such facts; or (c) upon
 information received from any person other than a police
 officer or upon his own knowledge that such offence has
 been committed. Chapter XV of the code comprising
 sections 200 to 203 prescribes the procedure the
 Magistrate has to initially follow if it takes

¶354

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¶355

 cognizance of an offence on a complaint under section
 190(1)(a).

¶356

 68. A conjoint reading of the above provisions would
 show that when a "complaint" disclosing a cognizable
 offence is made before a Magistrate, he "may take
 cognizance" of the same under section 190(1)(a) of the
 Code and proceed with the same in accordance with the
 provisions of Chapter XV. The other option available to
 the Magistrate in such a case is to send the complaint
 to the appropriate police station under section 156(3)
 for investigation. Once such a direction is given under
 sub-section (3) of section 156, the police are required
 to investigate into that complaint under sub-section (1)
 thereof and on completion of investigation to submit a
 "police report" in accordance with section 173 (2) on
 which the Magistrate "may take cognizance" under section
 190(1)(b) but not under section 190(1)(a). A complaint
 filed before a Magistrate cannot be a police report in
 view of the definition of a complaint referred to
 earlier and it is further clear that the investigation
 of a "cognizable case" by the police under section
 156(1) ultimately culminates in a police report under
 section 173(2) of the Code. This position of law is
 explained by the Apex Court in Madhu Bala Vs.Suresh
Kumar and ors, AIR 1977 SC 3104.

¶357

 -83-

¶358

 69. Thus, it would be seen that while Chapter XIV

¶359

 deals with the post cognizance stage, Chapter XII,
 comprising of Sections 156 and 173, deals with
 pre-cognizance stage. Sections 190 and 156(3) are
 mutually exclusive and function in totally different
 spheres. A Magistrate can order investigation under
 section 156(3) only at the pre-cognizance stage, that is
 to say, before taking cognizance under sections 190, 200
 and 204 and where a Magistrate decides to take
 cognizance under the provisions of Chapter XIV, in law
 he need not order any investigation under section 156(3)
 though in cases not falling within the proviso to
 section 202 he can order an investigation by the police
 which would be in the nature of an enquiry as
 contemplated by section 202 of the Code. This is

¶360

 settled by the Apex Court in Tula Ram and ors Vs.

¶361

Kishor Singh, (1977) 4 SCC 459 while interpreting the

¶362

 expression "taking cognizance". Thus, the law is no
 more res integra and it is settled by the Apex Court in
 a long series of Judgments that passing order under
 section 156(3) is a precognizance stage and such order
 cannot be construed to mean that a Magistrate has taken
 cognizance of the offence disclosed in the complaint.
 Insofar as powers of the Magistrate are concerned, the
 aforestated position of law was not disputed by the

¶363

 -84-

¶364

 learned counsel appearing for the petitioners in this
 group of writ petitions. However, the question raised
 and falls for consideration is whether the Special Court
 constituted by sections 5 of MCOCA can exercise the
 aforesaid powers of a Magistrate. We will deal with
 this question little later.

¶365

 70. To consider the question referred to for our
 consideration and to appreciate the arguments advanced
 by the learned counsel for the parties it would be
 advantageous to reproduce Sections 9(1) and 23 of MCOCA
 which read thus:

¶366

 "9. Procedure and powers of Special Court -

¶367

 (1) A Special Court may take cognizance of any
 offence without the accused being committed to it
 for trial, upon receiving a complaint of facts
 which constitute such offence or upon a police
 report of such facts.

¶368

 23. Cognizance of, and investigation into, an
 offence - (1) Notwithstanding anything
 contained in the Code-

¶369

 (a) no information about the commission of an
 offence of organised crime under this Act, shall
 be recorded by a police officer without the prior
 approval of the police officer not below the rank
 of the Deputy Inspector General of Police;

¶370

 (b) no investigation of an offence under the
 provisions of this Act shall be carried out by a
 police officer below the rank of the Deputy
 Superintendent of Police.

¶371

 -85-

¶372

 (2) No Special Court shall take cognizance of any
 offence under this Act without the previous
 sanction of the police officer not below the rank
 of Additional Director General of Police."

¶373

 71. In section 9(1) of MCOCA the phraseology employed
 may be noticed at this stage. A Special Court "may take
 cognizance" of any offence without the accused being
 committed to it for trial, upon receiving a "complaint"
 of facts which constitute such offence or upon a "police
 report" of such facts. Keeping this provision in view
 if we hold that the provisions of Sections 156 and 190
 of the Code are not inconsistent with the provisions of
 MCOCA and in particular with section 23 thereof and that
 the Special Court while dealing with a "complaint" under
 section 9(1) can exercise those powers conferred on the
 Magistrate then the Special Judge will have an option to
 take cognizance of the complaint under section 190(1)(a)
 and proceed in accordance with the provisions of Chapter
 XV of the Code or to direct investigation under section
 156(3) and on receipt of a "police report" under section
 173(2) "may take" cognizance of such complaint under
 section 190(1)(b) of the Code.

¶374

 72. The provisions of section 23 of MCOCA deal with
 cognizance of, and investigation into, an offence.
 Sub-section (1) of section 23 deals with the powers of

¶375

 -86-

¶376

 investigating agency whereas sub-section (2) deals with
 the powers of the Special Court to take cognizance
 subject to previous sanction. Sub-section (1) begins
 with a non-obstante clause. Clause (a) thereof provides
 that notwithstanding anything contained in the Code, "
 no information" about the commission of an offence of
 organised crime under MCOCA,shall be recorded by a
 police officer without the "prior approval" of the
 police officer not below the rank of the Deputy
 Inspector General of Police. Clause (b) of sub-section
 (1) provides that notwithstanding anything contained in
 the Code, no investigation of an offence under the
 provisions of MCOCA shall be carried out by a police
 officer below the rank of the Deputy Superintendent of
 Police. Sub-section (2) of Section 23 deals with the
 power of the Special Court by which no Special Court is
 empowered to take cognizance of any offence under MCOCA
 without the "previous sanction" of the police officer
 not below the rank of the Deputy Superintendent of
 Police. A bare perusal of section 23 makes it
 explicitly clear that it provides threefold
 protections/safeguards before the Special Court takes
 cognizance of any offence under this Act i.e, (i) prior
 approval for recording and registration of an
 "information"; (ii) investigation by a senior police
 officer; and (iii) the previous sanction for taking

¶377

 -87-

¶378

 cognizance of the offence under MCOCA. The submission
 that these protections cannot be whittled down or
 rendered nugatory by maintaining a private complaint and
 by passing an order under section 156(3) of the Code,
 will stand addressed at the end of this judgment.

¶379

 73. The Supreme Court had an occasion to consider the
 provision of Section 20A (1) of the Terrorist and
 Disruptive Activities (Prevention) Act, 1987 (for short,
 "TADA"), which is para materia with clause (a) of
 sub-section (1) of Section 23 of MCOCA, in Mukhtiar
Ahmed Ansari Vs State (N.C.T. of Delhi), (2005) SCC
(Cri) 1037. This judgment was heavily relied upon by
 the petitioners. The Supreme Court while considering
 the aforesaid provision of TADA observed that it clearly
 lays down that no information about the commission of an
 offence under TADA is to be recorded by the police
 without prior permission of the District Superintendent
 of Police and "such prior permission is a condition
 precedent for registering a case under TADA". From the
 facts of that case, it is clear that the cognizance was
 taken on the basis of the "first information report"
 recorded by the police and not on the basis of a
 "private complaint" and the Supreme Court was dealing
 with the submission that the proceedings could not have
 been initiated in the absence of "prior approval" of the

¶380

 -88-

¶381

 District Superintendent of Police as required under
 sub-section (1) of Section 20A of TADA. Against that
 backdrop the Supreme Court held that the police have no
 power to record and register "first information report"
 about the commission of an offence under TADA without
 prior approval of the District Superintendent of Police.
 Indubitably, that analogy would apply only if the "first
 information report" is recorded by the police officer
 without prior approval an officer not below the rank of
 the Deputy Inspector General of Police, as provided for
 in sub-section (1)(a) of Section 23 of MCOCA, of the
 offence of organised crime under that Act and in that
 case the proceedings would vitiate and conviction, if
 any, will be liable to be set aside. In other words,
 the prior approval under section 23(1)(a) is a condition
 precedent for recording first information report "by the
police" about the commission of an offence of organised
 crime under MCOCA. It may be noticed, at this stage,
 that the Supreme Court in Mukhtiar Ahmed Ansari’s case
 was not considering the provision of Section 14(1) of
 TADA and the word "complaint" occurred therein which is
 para-materia with Section 9(1) of MCOCA.

¶382

 74. Similarly, the Supreme Court also had an occasion
 to deal with the provisions of Section 20A( 2) of TADA

¶383

 in Rambhai Nathabhai Gadhvi and others Vs. State of

¶384

 -89-

¶385

Gujarat (1997) 7 SCC 744. The provisions of sub-section
 (2) of Section 23 of MCOCA are para materia with section
 20(A) (2) of TADA. It will be useful to refer to the
 observations made in paragraph 8 of that judgment which
 reads thus:

¶386

 "8. Taking cognizance is the act which the
 Designated Court has to perform and granting
 sanction is an act which the sanctioning
 authority has to perform. Latter is a condition
 precedent for the former. Sanction contemplated
 in the sub-section is the permission to prosecute
 a particular person for the offence or offences
 under TADA. We must bear in mind that sanction
 is not granted to the Designated Court to take
 cognizance of the offence, but it is granted to
 the prosecuting agency to approach the Court
 concerned for enabling it to take cognizance of
 the offence and to proceed to trial against the
 persons arraigned in the report. Thus a valid
sanction is sine-qua-non for enabling the
prosecuting agencyto approach the Court in order
to enable the Court to take cognizance of the
offence under TADA as disclosed in the report.
 The corollary is that, if there was no valid
 sanction the Designated Court gets no
 jurisdiction to try a case against any person
 mentioned in the report as the Court is forbidden
 from taking cognizance of the offence without
 such sanction. If the Designated Court has taken
 cognizance of the offence without a valid
 sanction, such action is without jurisdiction and
 any proceedings adopted thereunder will also be
 without jurisdiction." (emphasis supplied)

¶387

 It is clear from the facts of this case that the
 cognizance of the offence under the provisions of TADA
 was taken on the basis of the information recorded by
 the police and not on the basis of a "private complaint"

¶388

 -90-

¶389

 and against that backdrop the Apex Court had observed
 that taking cognizance of the offence without "valid
 sanction" is without jurisdiction and any proceedings
 adopted thereunder will also be without jurisdiction. A
 plain reading of sub-section (2) of Section 23 in the
 light of the aforesaid observations would clearly show
 that the previous sanction as contemplated therein is
 sine-qua-non in order to enabling the Special Court to
 take cognizance of the "offence" under MCOCA recorded
 "on information to the police". In other words, a valid
 sanction is sine-qua-non for enabling the prosecuting
 agency to approach the Court in order to enable it to
 take cognizance of the offence under MCOCA as disclosed
 in the police report forwarded by the competent police
 officer after carrying out an investigation with prior
 approval as contemplated by section 23(1) of MCOCA. It
 is thus clear that the ratio laid down by the Supreme
 Court in both these cases would apply whenever the
 offence under MCOCA is recorded on the information to
 the police, investigated and taken cognizance of by the
 Special Court without "prior approval" and "sanction" as
 contemplated by section 23 of MCOCA and in that case the
 proceedings would vitiate. It is very pertinent to
 notice that in both the aforestated cases the provision
 of section 14(1) of TADA which is para materia with
 section 9(1) of MCOCA and the question whether a private

¶390

 -91-

¶391

 complaint is tenable and directions for investigation
 could be given under section 156(3) of the Code was not
 under consideration of the Supreme Court. However, the
 question that falls for our consideration is whether
 sanction contemplated by section 23(2) is sine-qua-non
 for taking cognizance upon receiving a private complaint
 as contemplated by section 9(1) of MCOCA.

¶392

 75. The scheme of Section 23 of MCOCA would show that
 the Special Court requires to take cognizance of any
 offence of organised crime only upon a strict compliance
 of the conditions enumerated in clauses (a) and (b) of
 sub-section (1) and with the previous sanction of the
 police officer not below the rank of Additional Director
 General of Police as provided in sub-section (2)
 thereof. In other words, unless all the three
 conditions contemplated under section 23 are strictly
 complied with, the Special Court has no power to take
 cognizance of any offence of organised crime under MCOCA
 and if they are complied with it has no option but to
 take cognizance. Sub-section (2), though is an
 independent sub-section, in our opinion, has a force of
 proviso to sub-section(1) In short, section 23 provides
 for three conditions/safeguards and they are all
 mandatory. In the absence of "prior approval" and
 "previous sanction" as provided for under section

¶393

 -92-

¶394

 23(1)(a) and 23(2), and unless investigation is being
 carried out by the competent officer as required under
 section 23(1)(b), no information about the commission of
 an offence of an organised crime under MCOCA can be
 recorded, investigated and taken cognizance of by the
 Special Court. Section 9(1), however, does not
 stipulate such conditions. The learned Advocate General
 vehemently submitted that the conditions stipulated in
 section 23 are mandatory for the Special Court to take
 cognizance of even a private complaint under section
 9(1). He further submitted that the Special Court
 cannot pass an order under section 156(3) of the Code
 and the only option is to forward such complaint to the
 police for appropriate action under section 23. In
 other words, unless police machinery steps in and grants
 sanction, as provided for in section 23, a private
 complaint cannot be taken cognizance of.

¶395

 76. In criminal jurisprudence, the police always act
 under the direct control of the Court and have to take
 orders from it at every stage of an enquiry or
 investigation or trial, as case may be, particularly
 when the enquiry or investigation is being conducted on
 the directions of the Court. The Court exercises an
 overall control on the action of the police officer in
 every such case either before or after taking

¶396

 -93-

¶397

 cognizance. Police do not control the Court or the
 Court does not take orders from the police. The whole
 set up of Court is for the purposes of administration of
 justice, and the control which the Judge exercises over
 the police has also the object of maintaining purity of
 administration of justice. The Court does perform
 multifarious function for due administration of justice.
 Keeping these principles in view and for the reasons
 recorded in this judgment, the submission that the
 Special Court has no powers to direct investigation
 under section 156(3) or to take cognizance of a private
 complaint under section 9(1) unless all the three
 conditions stipulated in Section 23 of MCOCA are
 strictly complied with, must be rejected. If the powers
 of Court are made subject to control of the police
 machinery then it will virtually result in mockery of
 justice and defeat the very mandate of Article 21 of the
 Constitution of India. Powers of Court are wide enough
 to protect interest of everyone who is before it.

¶398

 77. The legislature did not find it necessary to put
 fetters/conditions on the powers of the Special Court,
 as they are put on the police machinery in Section 23 of
 MCOCA. The legislature was conscious of the fact that
 the Special Court is competent enough to take care of
 the object of putting fetters on the powers of police

¶399

 -94-

¶400

 under section 23 before taking cognizance of a private
 complaint received under section 9(1) and has,
 therefore, not made the powers of the Court subject to
 such conditions. In short, keeping in view the SOR, it
 appears to us that the legislature did not find it
 necessary to make powers of the Court subject to "prior
 approval" and "previous sanction" of the police
 machinery while dealing with a private complaint.
 Making previous sanction under sub-section (2) of
 Section 23 as a condition precedent for taking
 cognizance is understandable and seems to be reasonable
 in view of the conditions imposed on the police
 machinery under Section 23(1) of which strict compliance
 is mandatory before grant of sanction. In other words,
 it is only after strict compliance of the conditions
 stipulated in sub-section (1) and (2) of Section 23 the
 Special Court is empowered to take cognizance under
 sub-section (2). That appears to be the reason why
 phraseology "shall take cognizance" has been employed in
 sub-section (2) of Section 23 of MCOCA.

¶401

 78. At this stage, it would be appropriate to look
 into the relevant provisions of POTA with which the
 Division Bench in Criminal Appeal No.1451 of 2003 was
 primarily concerned. The provisions of Sections 29(1)
 and 50 of POTA and sections 9(1) and 23 of MCOCA are

¶402

 -95-

¶403

 somewhat similar, though not identical. Section 29(1)
 of POTA reads thus:-

¶404

 "29. Procedure and powers of Special Courts:-

¶405

 (1) subject to the provisions of Section 50, a
 Special Court may take cognizance of any offence,
 without the accused being committed to it for
 trail, upon receiving a complaint of facts that
 constitute such offence or upon a police report
 of such facts."

¶406

 A bare perusal of this provision would show that,
 subject to the provisions of Section 50, a Special Court
 can take cognizance of any offence, without the accused
 being committed to it for trial, upon receiving a
 complaint of facts that constitute such offence or upon
 a police report of such facts. The power of the Court
 is expressly made subject to the provisions of Section
 50. The difference of language between this provision
 and section 9(1) of MCOCA is apparent. The power of the
 Special Court under section 9(1) is not made subject to
 any other provisions in MCOCA. Section 50 of POTA reads
 thus:

¶407

 "50. Cognizance of offences:- No Court shall
 take cognizance of any offence under this Act
 without the previous sanction of the Central
 Government or as the case may be, the State

¶408

 -96-

¶409

 Government."

¶410

 Section 50 of POTA empowers the Court to take cognizance
 of any offence under that Act only with the previous
 sanction of the Central Government or as the case may
 be, the State Government. A bare perusal of this
 section makes it explicitly clear that previous sanction
 is mandatory for taking cognizance of any offence under
 POTA and the powers of the Special Court under section
 29(1) are made subject to that provision. Keeping in
 view the statement of object and reasons and the role of
 the Central as well as State Governments in the cases of
 terrorism, the legislature in its wisdom made the
 provisions of Section 29(1) subject to the provisions of
 Section 50. Such control on the powers of the Special
 Court does not find place in section 9(1) of MCOCA.

¶411

 79. We would also like to consider, at this stage,
 the submission advanced on behalf of the petitioners
 that in the face of the provisions of sub-section (1) of
 Section 23, which provide for an investigation of an
 offence under MCOCA by a police officer not below the
 rank of the Deputy Superintendent of Police, whether the
 investigation could be made over to an officer-in-charge
 of a police station as contemplated by sub-section (1)
 of Section 156 of the Code. It was further submitted

¶412

 -97-

¶413

 that there may be occasions of a private complaint being
 filed against the police officer superior in rank to the
 officer-in-charge of a police station or against a
 public servant holding higher rank in which case it
 would not be proper to direct an officer-in-charge of a
 police station to carry out investigation under section
 156(3), of the offences under MCOCA. It is true that
 the primary responsibility for conducting investigation
 into offences in cognizable cases vests with
 officer-in-charge of a police station. Section 156(3)
 of the Code empowers a Magistrate to direct such officer
 in charge of the police station to investigate any
 cognizable case over which such Magistrate has
 jurisdiction. Though a Magistrate under Section 156(3)
 can only direct an officer-in-charge of a police station
 to conduct such investigation and not a superior police
 officer, nevertheless, when such an order is passed, any
 police officer superior in rank of such officer, can as
 well exercise the power to conduct an investigation, and
 all such investigations would then be deemed to be the
 investigation conducted by the officer in-charge of a
 police station. Section 36 of the Code is not meant to
 substitute the magisterial power envisaged in Section
 156(3) of the Code, though it could supplement the
 powers of an officer in charge of a police station. It
 is permissible for any superior officer of police to

¶414

 -98-

¶415

 take over the investigation from such officer in charge
 of the police station either suo motu or on the
 direction of the superior officer or even that of the
 Government. However, the magisterial power cannot be
 stretched under section 156(3) beyond directing the
 officer in charge of a police station to conduct the
 investigation, as noted by the Supreme Court in CBI Vs.

¶416

State of Rajasthan, (2001) 3 SCC 333. It is true that

¶417

 the Special Court, while exercising the powers under

¶418

 section 156(3) of the Code, can only direct an
 officer-in-charge of a police station to conduct such
 investigation. But when such order is passed, any
 police officer superior in rank of such officer can as
 well exercise the power to conduct an investigation, and
 all such investigations would then be deemed to be the
 investigation conducted by the officer-in-charge of a
 police station. Section 36 of the Code clearly empowers
 any superior officer of police to take over the
 investigation from officer-in-charge of a police station
 either suo motu or on the direction of the superior
 officer or even that of the Government. In other words,

¶419

 it is always open for the police machinery or the
 Government, in the event of an order under section
 156(3) of the Code, to take over the investigation from
 the officer-in-charge of a police station by the
 superior officer either suo motu or on the direction of

¶420

 -99-

¶421

 the Government.

¶422

 80. A plain reading of Section 9(1) of MCOCA would
 show that it is not controlled by any other provisions
 of MCOCA much less section 23 which primarily deals with
 the powers of the police machinery. Section 9(1) is an
 independent section which confers powers on the special
 Court and they are not made subject to
 supervision/control of the police. The police machinery
 cannot decide whether the Special Court should take
 cognizance if it receives private complaint. By using
 the expression "may take cognizance" in Section 9(1) the
 Special Court is empowered to "take or not to take"
 cognizance of any offence under MCOCA without the
 accused being committed to it for trial, upon receiving
 a "private complaint" of facts which constitute such
 offence or upon a police report of such facts forwarded,
 after completing the investigation, under section 173(2)
 of the Code. In other words, section 9(1) of MCOCA does
 away with the requirement of committing the accused to
 the Special Court for trial and states that cognizance
 can be taken upon receiving a complaint of facts which
 constitute such offence or upon a police report of such
 facts. The word "may" in Section 9(1) in any case
 cannot be construed to mean "must" and it retains its
 meaning "may" for the reasons recorded earlier. As

¶423

 -100-

¶424

 against this, Section 23 deals with the cognizance of
 and investigation into an "information" recorded by a
 police officer after strict compliance of the conditions
 stipulated therein.

¶425

 81. A conjoint reading of Sections 9 and 23 of MCOCA
 would show that a clear distinction is made between a
 "complaint" contemplated by section 2(d) of the Code and
 recording of an "information" by the police about the
 commission of an offence of organised crime. Reference
 to "police report" in Section 9(1) is to the report
 under section 173(2) of the Code which police would
 forward to the Special Court on completion of the
 investigation directed under section 156(3) of the Code.
 Though there is no specific reference to a police report
 in Section 23, the Special Court is empowered to take
 cognizance of a report being filed after completing the
 investigation of the "information" recorded and
 investigated as provided for in sub-section (1) of
 Section 23 of MCOCA. The word "information" in Section
 23(1) means "first information report" contemplated by
 section 154 in Chapter XII of the Code inasmuch as it
 has not been defined in MCOCA. A reference to "police
 report" in sub-section (1) of Section (9) and "police
 report" contemplated by section 23 are independent of
 each other. In other words, a "police report" in

¶426

 -101-

¶427

 sub-section (1) of Section 9 means a report that would
 be forwarded by the police on completion of the
 investigation under section 173(2) of the Code made on
 the basis of the "private complaint". Whereas a "police
 report" under section 23 would be on the basis of an
 "information" recorded by the police and after carrying
 out the investigation by a senior police officer with
 the prior approval under sub-sections (1) (a) of Section
 23. This is further clear from the language of Sections
 9(1) and 23(2). The phraseology employed in Section
 9(1), "may take cognizance" empowers the Special Court
 to take or not to take cognizance of a "complaint" or a
 "police report" whereas under section 23(2) the
 phraseology employed is "shall take cognizance". No
 option is left to the Special Court for the reasons
 recorded earlier. Thus, Section 9(1) and Section 23 are
 independent of each other and work in a totally
 different sphere. The language or the phraseology
 employed by the legislature is precise and plain and it
 proclaims the legislative intent in unequivocal terms
 and hence the same must be given effect to, regardless
 of the consequences that may follow. It is against this
 backdrop, though we agree with the opinion expressed by
 the Division Bench in Criminal Writ Petition No.1772 of
 2004 holding that the Special Court has power to take
 recourse to the provisions of the Code while dealing

¶428

 -102-

¶429

 with a private complaint, we find it difficult to
 persuade ourselves to agree with the view that the
 provisions of section 23(2) of MCOCA are sine-qua-non
 for taking cognizance of a complaint under section 9(1).
 Except the conclusions arrived at in paragraph 39(b) and
 (c) partly of that judgment, we agree with all other
 conclusions arrived at in the Judgment of the Division
 Bench in Criminal Writ Petition No.1772 of 2004.
 Similarly we are unable to persuade ourselves to agree
 with the ratio laid down by the Division Bench in
 Criminal Appeal No.1451 of 2004 decided vide Judgment
 pronounced on 21.12.2004, requiring a private
 complainant to approach the police agency and/or
 requiring the Special Court to forward such complaint
 received from a private individual for compliance of the
 conditions stipulated in Section 23 of MCOCA.

¶430

 82. Let us add some more reasons for not agreeing
 with the conclusion in paragraph 39(b) of the judgment
 in Criminal Writ Petition No.1772 of 2004. Sanction
 under section 197 of the Code and sanction under section
 23(2) of MCOCA are totally independent of each other and
 cannot be equated for any purpose whatsoever. Section
 197 of the Code makes requirement of obtaining sanction
 of prosecuting a "public servant" mandatory. The bar
 under section 197 is absolute and complete and the Court

¶431

 -103-

¶432

 cannot take cognizance of a complaint of facts
 disclosing any offence alleged to have been committed by
 a public servant while acting or purporting to act in
discharge of his official duty unless the previous
 sanction is obtained from the appropriate authority.
 The object for the protection offered by section 197 is
 the public interest in seeing that the official acts do
 not lead to endless or vexatious prosecution. It should
 be left to the Government to determine from the point of
 view the question of expediency of prosecuting any
 public servant. In other words, the object and purpose
 underlying this section is to afford protection to
 public servants against frivolous, vexatious or false
 prosecution for offences alleged to have been committed
 by them while acting or purporting to act in the
 discharge of their official duty. This section is
 designed to facilitate an effective and unhampered
 performance of their official duty by public servants by
 providing for scrutiny into the allegations of
 commission of offence by them by their superior
 authorities and prior sanction for their prosecution as
 a condition precedent to the cognizance of the cases
 against them by the Courts, as noted by the Supreme in
Bhagwan Prasad Srivastava V. N.P.Mishra, (1970) 2SCC
56. It is also well settled that where the offence
 committed by a public servant is not one while he is

¶433

 -104-

¶434

 acting or purporting to act in the discharge of his
 official duty as such offence has no necessary
 connection between it and the performance of the duties
 of a public servant, the official status furnishing only
 the occasion or opportunity for the commission of the
 offences, he is not entitled to claim the protection of
 Section 197(1) of the Code. The Supreme Court has made
 this clear in Manohar Nath Kaul V. State of J & K,
(1983) 3 SCC 429. In Director of Inspection and Audit
Vs. C.L.Subramaniam, 1994 Supp (3) SCC 615, the Supreme
 Court has observed that in order to apply the provisions
 of Section 197 Cr.P.C two conditions must be fulfilled;
 one is that the offence mentioned therein must be
 committed by a public servant and the other is that the
 public servant employed in connection with the affairs
 of the Union or a State is not removable from his office
 save by or with the sanction of the Central Government
 or the State government, as the case may be. The object
 of the section is to provide guard against vexatious
 proceedings against the public servants and to secure
 the opinion of superior authority whether it is
 desirable that there should be a prosecution. As
 against this, sanction contemplated by section 23(2) is
 with an object to afford protection or safeguard before
 prosecuting a person, irrespective of his status whether
 or not he is a public servant, under the stringent and

¶435

 -105-

¶436

 deterrent provisions of MCOCA. No special protection
 has been provided to a public servant under the
 provisions of MCOCA though it provides punishment to the
 public servants also. Since in the instant petitions we
 are not concerned with the question that whether in the
 instant petitions the previous sanction under section
 197 of the Code is necessary for prosecuting a public
 servant under the provisions of MCOCA we refrain from
 expressing any opinion on this question. In any case,
 the object of sanction under section 197 of the Code and
 sanction under section 23(2) of MCOCA are distinct. We,
 therefore, find it difficult to agree with the
 observations made by the Division Bench in Criminal Writ
 Petition No.1772 of 2004 in paragraph 39(b) of their
 judgment.

¶437

 83. It is true that the provisions of this Act are
 very harsh and drastic containing stringent and
 deterrent provisions and provide for minimum punishment
 and in some other offences enhanced penalty also. It is
 also true that to avoid misuse of the application of the
 provisions of MCOCA, the safeguards under section 23
 have been provided. However, the misuse contemplated is
 not by the Court but by the police. The powers of the
 Special Court under section 9(1) are not controlled by
 Section 23. The legislature never intended to leave

¶438

 -106-

¶439

 anyone remediless and the Court powerless to move
 against persons involved in an organised crime,
 particularly if such crime either has not been known to
 or noticed by the police or there is total inaction on
 the part of the police. If the acts of miscreants
 attract the provisions of MCOCA, as observed earlier,
 even a private individual has a right to approach the
 Special Court under section 9(1) and in that case the
 Court is empowered to move on receiving a complaint of
 facts which, to the mind of the Special Court,
 constitute offence under MCOCA. A person involved in an
 organised crime or a member of an organised crime
 syndicate cannot be allowed to go scot-free,
 irrespective of his status and regardless of the
 consequences that may follow, merely because the police
 are either not aware of his activities or there is total
 inaction on their part for whatsoever reason. If the
 Court is satisfied of the prima facie case and decides
 to proceed against such person it cannot be left at the
 mercy of police machinery.

¶440

 84. The Special Court, however, while dealing with
 the private complaint under sub-section (1) of section 9
 of MCOCA should exercise its power to direct
 investigation under section 156(3) and/or to take
 cognizance of such complaint sparingly, cautiously and

¶441

 -107-

¶442

 only if the allegations made in the complaint, prima
 facie, constitute an offence under the provisions of
 MCOCA. In other words, the learned Special Judge should
 examine the complaint and see whether all the
 ingredients to constitute an offence of organised crime
 prima facie exist in such complaint, requiring him to
 proceed against the accused either under section 156(3)
 or Section 190(1)(a) of the Code. The Special Court is
 not expected to act merely as a post office of the
 investigating agency by forwarding the complaint to the
 investigating agency under section 156(3) of the Code
 without being satisfied the allegations made in the
 complaint do constitute an offence under MCOCA. The
 Special Court, while doing so, should keep all the time
 in view a serious and drastic consequences of directing
 investigation under section 156(3) of the Code. In a
 given case, it would be appropriate for the Special
 Court to see who is the complainant?; why is he
 approaching the Court directly?; whether an attempt has
 been made to approach the police?; his antecedents and
 interest, if any, in filing such complaint etc. This
 does not mean that the learned Judge should embark upon
 an enquiry as to the reliability or genuineness or
 otherwise of the complaint. It is also not necessary
 that in every private complaint filed before the Special
 Court, it should direct investigation under section

¶443

 -108-

¶444

 156(3). The other option, in view of the peculiar facts
 and circumstances of the case, open to the Court is to
 transmit the complaint to the Deputy Inspector General
 of Police for appropriate action under section 23(1) of
 MCOCA. This option may be exercised by the Special
 Court when it finds that the allegations are serious and
 it is doubtful about the bonafides and intention of the
 complainant.

¶445

 85. For arriving at the aforesaid conclusions and in
 support thereof, we would like to further examine
 whether the Special Court can exercise the powers
 conferred on the Magistrate by Chapters XII, XIV and XV
 of the Code as a Court of original jurisdiction and
 whether such powers conferred on the Magistrate are
 inconsistent with the provisions of MCOCA. However,
 before we proceed further, we would like to deal with
 the submission of the learned Advocate General that
 though sub-section (1) of Section 9 contemplates private
 complaint, the only role that should be played by the
 Special Court is to forward such complaint to the police
 to act on the same in accordance with the provisions of
 Section 23 of MCOCA. In other words, the role of a
 Special Court is not more than a post office of the
 investigating agency. The intent of the legislature as
 discussed earlier is clearly reflected in the provisions

¶446

 -109-

¶447

 of MCOCA. The legislature in its wisdom provided for
 private complaint of facts constituting an offence under
 MCOCA which, in our opinion, is not an empty formality.
 Had the legislature intended the Special Court to act as
 a post office it would have made such intention clear in
 the Act itself. There is no express provision in the
 Act requiring the Special Court to forward such
 complaint for complying with the provisions of Section
 23 and then to proceed further.

¶448

 86. It was strenuously urged that the provisions of
 Sections 156 and 190 read with the provisions of Chapter
 XV are inconsistent with the provisions of Section 23 of
 MCOCA. We have already observed that the provisions of
 section 9 (1) are independent of the provisions of
 Section 23 and they are not controlled or subject to the
 provisions of section 23. Section 9(1) independently
 gives powers to the Special Court to entertain a
 "complaint" or a "police report" and decide whether or
 not to take cognizance of any offence under MCOCA. It
 is well settled rule of interpretation that a statute
 has to be construed according to the intent of them that
 make it and the duty of the Court is to act upon the
 true intention of the legislature. Further the
 provisions of the Statute are meant for its enforcement
 and that should be the approach while dealing with such

¶449

 -110-

¶450

 provisions. Reading of MCOCA as a whole would show that
 whenever and wherever the legislature intended the
 provisions of the Code to be followed or not to be
 followed, it has so indicated by employing a non
 obstante clause in all such provisions. For instance,
 Section 6 which deals with jurisdiction of a Special
 Court. It begins with non-obstante clause and declares
 that notwithstanding anything contained in the Code,
 every offence punishable under this Act shall be triable
 only by the Special Court within whose local
 jurisdiction it was committed, or as the case may be, by
 the Special Court constituted for trying such offence
 under sub-section (1) of Section 5. By employing a
 non-obstante clause, the legislature made it clear that
 under any circumstances jurisdiction of the Special
 Court would be controlled by this provision and not by
 the provisions of the Code. There are several such
 provisions in MCOCA which begin with a non-obstante
 clause including Section 23. Section 21 deals with
 modified application of certain provisions of the Code
 which also begins with a non-obstante clause.
 Sub-section (1) of Section 21 of MCOCA clearly provides
 that notwithstanding anything contained in the Code or
 in any other law, every offence punishable under this
 Act, shall be deemed to be a cognizable offence within
 the meaning of clause (c) of Section 2 of the Code and

¶451

 -111-

¶452

 "cognizable case" as defined in that clause shall be
 construed accordingly. Sub-section (2) of section 21
 has modified section 167 of the Code. Sub-section (3)
 bars the application of section 438 of the Code.
 Sub-sections (4), (5) and (6) further put fetters on the
 powers of Court for release of the accused on bail.
 Section 25 provides for overriding effect of the
 provisions of MCOCA, which states that the provisions of
 MCOCA or any rule made thereunder or any order made
 under any such rule shall, have effect notwithstanding
 anything inconsistent therewith contained in any other
 law for the time being in force or in any instrument
 having the force of law. It is thus clear that the
 provisions of the Code can be taken recourse to by the
 Special Court as long as such access is not denied by
 employing a non-obstante clause and the provisions to
 which recourse was taken by the Special Court, are not
 inconsistent with the provisions of MCOCA.

¶453

 87. The legislature can create a Special Court to
 deal with a special problem. It can also create new
 procedures within the existing system. The MCOCA is a
 special Act and creates a new class of offences called
 "Organised Crimes" as defined in Section 2(1)(d)(e) and
 (f) and provides for a special procedure for the trial
 of such offences. No doubt, the legislature by the use

¶454

 -112-

¶455

 of the words "as if it were" in section 9(4) of the Act
 vested a special court with the status of a Court of
 Session. But looking to the scheme of the Act, it is a
 Court of original jurisdiction and not strictly a Court
 of Session as defined under section 6(i) of the Code.
 It is conferred with powers under section 190 of the
 Code and, therefore, bar under section 193 does not
 operate against the special Court. There is a total
 departure from different classes of Criminal Courts
 enumerated in Section 6 of the Code. Under the Code,
 Session Court has no powers, except as otherwise
 expressly provided by any other law for the time being
 in force, to take cognizance of any offence as a Court
 of original jurisdiction unless the case has been
 committed to it by a Magistrate under the Code. The
 MCOCA does confer the status of a Court of Session on
 the special Court for the purposes of trial of any
 offence and empowers it to take cognizance of any
 offence as a Court of original jurisdiction. Bar under
 section 193 on the powers of Session Court, therefore,
 does not operate against the special Court constituted
 under section 5 of MCOCA. It is, therefore, seen that
 the Special Court can exercise the powers of a Court of
 original jurisdiction, i.e. a Magistrate conferred
 under the Code, as long as they are not inconsistent
 with the provisions of MCOCA.

¶456

 -113-

¶457

 88. That takes us to add some more reasons to hold

¶458

 that a Special Judge under section 9(1) of MCOCA is a
 Magistrate and has powers to proceed under Sections
 156(3) and 190 of the Criminal Procedure Code. Section
 9(1) of MCOCA does away with the requirement of
 committing the accused to the Special Court for trial
 and states that cognizance can be taken upon receiving a
 complaint of facts which constitute such offence or upon
 a police report of such facts. On fair reading of the
 provisions of MCOCA it appears to us that the Court of
 Special Judge is a Court of original criminal
 jurisdiction. In order to make it functionally
 oriented, some powers are conferred on it by MCOCA which
 has set it up. The Division Bench of this Court in
 Criminal Writ Petition No.1772 of 2004 has rightly held
 that "no debate is necessary where powers are
 specifically conferred on or specifically denied to it."
 On a proper reading of section 9(1) and on the basis of
 basic principles of criminal jurisprudence enunciated by
 the Supreme Court in A.R.Antulay’s case, in our opinion,
 under section 9(1) a Special Court can, therefore, not
 only entertain a "private complaint" but can also take
 recourse to Section 156(3) of the Code. In the case of

¶459

A.R.Antulay Vs. Ramdas Sriniwas Nayak and anr, AIR 1984

¶460

SC 718, the Constitution Bench while interpreting the

¶461

 -114-

¶462

 provisions of the Prevention of Corruption Act, 1947,
 and considering implication of Section 8(1) of the
 Criminal Law Amendment Act, 1952 (for short, "1952 Act")
 once again clarified the procedural law to be followed
 by the Special Court. Section 8(1) as introduced by
 1962 Act, reads thus:

¶463

 "8. Procedure and powers of special judge - (1)
 A special judge may take cognizance of offences
 without the accused being committed to him for
 trial, and in trying the accused persons, shall
 follow the procedure prescribed by the Code of
 Criminal Procedure, 1898 (Act V of 1898), for the
 trial of warrant cases by magistrates."

¶464

 The scheme of the above section is on the lines of the
 scheme of Section 9(1) and 9(4) of MCOCA as observed by
 the learned Single Judge in Dayanand B.Nayak Vs.Ketan

¶465

K.Tirodkar and Anr, 2004 All.M.R.(Cri) 1689. We agree

¶466

 with the opinion expressed by the learned Single Judge
 in that case which has been upheld by the Division of
 this Court in Criminal Writ petition No.1772 of 2004.
 In Antulay’s case (supra), while dealing with the powers
 of the Special Court under the Prevention of Corruption
 Act, the Constitutional Bench made reference to the
 provision of Section 8(1) of 1952 Act and has observed
 that "in order to give full effect to Section 8(1), the
 only thing to do is to read Special Judge in Sections
 238 to 250 wherever the expression Magistrate occurs.

¶467

 -115-

¶468

 This is what is called legislation by incorporation.
 Similarly, where the question of taking cognizance
 arises, it is futile to go in search of the fact whether
 for purposes of Section 190 which conferred power on the
 Magistrate, to take cognizance of the offence, Special
 Judge is a Magistrate. What is to be done is that one
 has to read the expression Special Judge in place of
 Magistrate, and the whole thing becomes crystal clear.
 The Legislature wherever it found the grey area
 clarified it by making specific provisions such as the
 one in sub-section (2) of Section 8 and to leave no one
 in doubt further provided in sub-section (3) that all
 the provisions of the Criminal Procedure Code shall so
 far as they are not inconsistent with the Act apply to
 the proceedings before a Special Judge". The Apex Court
 further observed that "the net outcome of this position
 is that a new Court of original jurisdiction was set up
 and whenever a question arose as to what are its powers
 in respect of specific questions brought before it as
 Court of original criminal jurisdiction it had to refer
 to the Criminal Procedure Code undauntedly by any
 designation claptrap. When taking cognizance, a Court
 of Special Judge enjoyed the powers under Section 190.
 When trying cases, it is obligatory to follow the
 procedure for trial of warrant cases by a Magistrate
 though as and by way of status it was equated with a

¶469

 -116-

¶470

 Court of Session."

¶471

 89. Keeping the aforesaid enunciation in the judgment
 of Antulay’s case in view, if we go back to Section 9 of
 MCOCA we find that the Special Judge is for some
 purposes deemed to be a Sessions Judge and for some
 other purposes deemed to be a Magistrate and some powers
 exercised by the Magistrate are conferred on him. The
 Special Judge under section 9(1) is empowered to take
 cognizance without the accused being committed and while
 trying the accused persons he is required to follow the
 procedure for trial as a Court of Session as
 contemplated under sub-section (4) of Section 9 of
 MCOCA. It is thus clear that while exercising powers
 conferred under sub-section (1) of Section 9, the
 Special Court exercises powers of Magistrate and while
 trying the accused it exercises the powers of Court of
 Sessions under Sub-section (4) of Section 9. In other
 words the Special Court for taking cognizance of any
 offence is a Court of original jurisdiction and for
 trying the accused it functions as a Court of Sessions.
 Moreover, the Court of Sessions has no inherent power to
 order investigation especially in view of bar under
 section 156(3), 190, 193,195 and 340 of the Code, nor
 can Sessions Court direct Inspector General of Police or
 a particular officer to conduct investigation. This

¶472

 -117-

¶473

 bar, however, would not operate against the Special
 Court constituted under section 5 of MCOCA since it is a
 Court of original criminal jurisdiction. It is in this
 view of the matter, I have no hesitation in holding that
 the Special Judge under section 9(1) of MCOCA is a
 Magistrate and can exercise the powers under section
 156(3) and 190 of the Code.

¶474

 90. What broadly emerges from the above discussion
 and, which, in our opinion, is a clear answer to the
 question referred to for our consideration, is outlined
 as follows:

¶475

 (i) A private complaint under section 9(1) of MCOCA
 is tenable.

¶476

 (ii) The Special Court, on receipt of a private
 complaint under section 9(1) of MCOCA, has the power to
 order an investigation under section 156(3) of the Code
 and upon receipt of a police report may or may not take
 cognizance of any offence under MCOCA. It can also
 reject such complaint outright if it does not disclose
 offence under MCOCA.

¶477

 (iii) Any officer-in-charge of a police station or
 police officer superior in rank to such officer, as the

¶478

 -118-

¶479

 case may be, can investigate any offence under MCOCA as
 and when such investigation is directed by the Special
 Court under section 156(3) of the Code and forward a
 report to the Special Court as provided for under
 section 173(2) of the Code. Compliance of the
 conditions mentioned in clauses (a) and (b) of

¶480

 sub-section (1) of Section 23 are not the conditions
 precedent for investigating a private complaint pursuant
 to the directions of the Special Court.

¶481

 (iv) The Special Court will have the power to take
 cognizance of any offence under MCOCA either upon
 receipt of a private complaint of facts which constitute
 such offence or upon a police report forwarded under
 section 173(2) of the Code after completion of the
 investigation pursuant to the directions under section
 156(3) of the Code and for which previous sanction under
 section 23(2) of MCOCA shall not be a condition
 precedent. In other words, the sanction under section
 23(2) of MCOCA is not a sine-qua-non for taking
 cognizance of a "private complaint".

¶482

 (v) The Special Court, while dealing with a private
 complaint under sub-section (1) of Section 9, has the
 powers of the Magistrate and while trying the accused it
 will have all the powers of the Court of Session under

¶483

 -119-

¶484

 sub-section (4) of Section 9 of MCOCA. In other words,
 the Special Court for taking cognizance of any offence
 is a Court of original jurisdiction and for trying the
 accused it functions as a Court of Session.

¶485

 . The question referred to for our consideration,
 accordingly, stands answered in aforesaid terms.

¶486

 91. That takes us to consider each of the
 petitions/applications transmitted to us by various
 orders for decision.

¶487

 (i) In Writ Petition No.127 of 2005, the petitioner
 has impugned the order dated 10.1.2005 rendered by the
 Designated Court and has prayed for quashing of the
 private complaint filed by respondent no.2. The learned
 Judge, after going through a copy of the complaint and
 annextures thereto, has directed the Commissioner of
 Police to take steps as contemplated under section 23 of
 MCOCA and to appoint a competent police officer to
 investigate the said complaint. He has further directed
 investigation under section 156(3) of the Code. We have
 already expressed the opinion on the question referred
 to for our consideration. Keeping that in view the
 impugned order is liable to be quashed and set aside
 since it is not in consonance with the interpretation of
 the relevant provisions made by us in this Judgment. We
 accordingly set aside the judgment and order impugned in
 the writ petition and direct the concerned Special Court

¶488

 -120-

¶489

 to consider the complaint filed by respondent no.2
 afresh keeping in view the opinion expressed and the
 conclusions arrived at in this judgment and pass
 appropriate orders within six weeks from the date of
 receipt of this judgment. Prayer (b) of the writ
 petition is rejected. The writ petition is,
 accordingly, disposed of.

¶490

 (ii) In Criminal Writ Petition No.1449 of 2005, the
 order dated 4.5.2005, directing investigation under
 section 156(3) of the Code passed on the private
 complaint lodged by respondent no.3, is under challenge.
 For the selfsame reasons, which we have recorded in the
 aforesaid sub-paragraph (i), the impugned order dated
 4.5.2005 is quashed and set aside. The Special Court to
 consider the complaint filed by respondent no.3 afresh
 keeping in view the opinion expressed and the
 conclusions arrived at in this judgment and pass
 appropriate orders within six weeks from the date of
 receipt of this order. It is needless to express that
 if the investigation pursuant to the impugned order is
 complete, and the report under section 173(2) of the
 Code is already forwarded, the Special Court may pass
 appropriate orders thereon within four weeks from the
 date of receipt of this order.

¶491

 (iii) Criminal Application No.6297 of 2005, seeking to
 intervene in Cri.Writ Petition No.127 of 2005, stands

¶492

 -121-

¶493

 allowed in view of the fact that the applicant was heard
 on merits for quite some time. The application is
 accordingly disposed of.

¶494

 (iv) In so far as other writ petitions/applications
 are concerned, in our opinion, those can be decided by
 the appropriate Bench. We, therefore, direct those
 petitions/applications to be placed before appropriate
 Bench for adjudication of the same on merits in
 accordance with law.

¶495

 sd/-

¶496

(D.B.BHOSALE,J.)

¶497

 sd/-

¶498

(V.K.TAHILRAMANI,J.)

¶499

 -122-

¶500

 CORAM : V.G.PALSHIKAR Acg.C.J.,

¶501

 D.B.BHOSALE AND V.K.TAHILRAMANI,JJ.

¶502

ORDER:-

¶503

 . Considering the majority view as also the
 minority view, in our opinion Writ Petitions are liable
 to be disposed of in terms of the following:

¶504

 i) Writ Petition No.127 of 2005

¶505

 Impugned order is set aside. Matter is remitted
 back to the Special Court for deciding afresh the
 application before it in the light of majority
 view.

¶506

 ii) Writ Petition No.1449 of 2005.

¶507

 Impugned order is set aside. The matter is
 remitted back to the Special Court for further
 orders on receipt of the report under Section
 156(3) of Criminal Procedure Code.

¶508

 iii) Interevention Application is disposed of as the
 Intervenors seeking intervention were heard.

¶509

 iv) All other petitions/applications should be listed
 before the concerned Division Bench for decision
 in the light of majority opinion expressed above.
 There shall be no order as to costs.

¶510

 V.G.PALSHIKAR Acg.C.J.,

¶511

 D.B.BHOSALE,J

¶512

 V.K.TAHILRAMANI,J.

¶513

 -123-

¶514

 fcjwp127-05gr

Ashok Gyanchand Vohra v. the State of Maharashtra and Anr.

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Ashok Gyanchand Vohra v. the State of Maharashtra and Anr.

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