Dismissed

Avinash Tukaram Sanas v. the State of Maharashtra

Bombay HC8 Feb 2013WP/974/2005

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the refusal to grant sanction for prosecution under the MCOCA. The Court held that the sanctioning authority had applied its mind to the relevant material, including an inquiry report, and the lack of detailed analysis in the order did not vitiate the decision. Consequently, the Special Court retained no jurisdiction.

What did the court decide?

None, the writ petition was dismissed and the rejection of the private complaint by the Special Court was upheld.

Avinash Tukaram Sanas Vs the State of… — Constitutional and Fundamental Rights | Bombay HC (2013)

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WP.974.2005.judgment.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE

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CRIMINAL WRIT PETITION NO. 974 OF 2005

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AVINASH TUKARAM SANAS

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Age 40 years of Mumbai, Indian Inhabitant, residing at 101, Coronation, Satguru Gardens, Thane, Dist. Thane (presently detained in Thane Central Jail) :- PETITIONER

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VERSUS

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1. STATE OF MAHARASHTRA

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2. SUDHAKAR B. PUJARI 3/3 Ekrar Bldg, Ekrar Road, Borivali (W), Mumbai and Vile Police Station, Vile Parle (E), Mumbai. :- RESPONDENTS

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

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

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Respondent No. 2 in person.

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CORAM:- A.M.KHANWILKAR & K.K.TATED,JJ.

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Judgment Reserved on :- February 1, 2013
Judgment Pronounced on :- February 8,2013

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J.V.Salunke,PA

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WP.974.2005.judgment.doc

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JUDGMENT:- (Per A.M.Khanwilkar,J.)

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Heard Counsel for the parties.

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This Writ Petition is filed by the original complainant.

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He had filed a private complaint for initiating criminal action against Respondent No. 2 Shri. Sudhakar B. Pujari, who was, at the relevant time, working as Assistant Commissioner of Police in Anti Corruption Bureau, Mumbai Unit, for offence punishable under Section 506(2), 504 of the Indian Penal Code read with Section 3(2) of the Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred to as “the MCOCA”). The Petitioner has challenged the order passed by the Commissioner of Police, Mumbai dated 28^th October, 2004, declining to grant sanction to prosecute Respondent No. 2 for the alleged offences as also the order passed by the Special Judge under the MCOCA, Mumbai, dated 8^th September, 2004 and the continuation order dated 6^th November, 2004, rejecting the complaint filed by the Petitioner, for want of sanction accorded by the Competent Authority, to prosecute Respondent No. 2.

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J.V.Salunke,PA

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WP.974.2005.judgment.doc

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The question, as to whether criminal action for offences punishable under the provisions of the MCOCA can be initiated on a private complaint and whether the Special Court can direct investigation of the said crime on the basis of such private complaint, has been answered by the Apex Court in the case of Jamiruddin Ansari vs. Central Bureau of Investigation and Anr.¹ This decision takes the view that institution of private complaint for criminal offence punishable under the provisions of the MCOCA can be maintained. However, it went on to observe that the Special Court can take cognizance of that complaint only after the Competent Authority referred to in Section 23 of the Act accords sanction in that behalf and not otherwise. In Paragraph 39 of this decision, the Court has further noted that even on a private complaint about the commission of an offence of organised crime under the MCOCA, cognizance cannot be taken by the Special Court, without due compliance of Sub-section 1 of Section 23, which starts with a non obstante clause. Section 23 of the said Act reads thus :-

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

1 2009 (6) SCC 316

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(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;

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(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.

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(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.”

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Sub-section (1) is in two parts. The first part mandates that no information about the commission of an offence of organised crime can be recorded by a police officer, without the prior approval of the police officer not below the rank of Deputy Inspector General of Police. In the present case, it is not necessary to dilate any further with regard to the efficacy of this provision, as the criminal action was intended to be commenced on the basis of a private complaint, directly filed before the Special Court. Nevertheless, the second part of Sub-section (1) may be apposite, which mandates that no investigation of an offence under the provisions of the Act can be carried out by a police officer below the rank of Deputy Superintendent of Police. In the present case,

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the Special Court, consequent to the filing of the private complaint, vide order dated 30^th April, 2004, issued directions that

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J.V.Salunke,PA

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WP.974.2005.judgment.doc

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copy of the affidavit as also of the miscellaneous application be sent to the Commissioner of Police, Mumbai. The Commissioner was directed to depute a competent officer not below the rank of Deputy Superintendent of Police, for recording information from the Petitioner in detail and thereafter to inquire further and investigate if necessary. The Court further directed the Commissioner to file report before it with appropriate statutory sanction under Section 23(2) of the MCOCA, if offences punishable under the provisions of MCOCA were disclosed during the said inquiry/investigation so done.

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The Petitioner being complainant, was relying on affidavit of 14 witnesses in support of the accusation made in the complaint against Respondent No. 2, with regard to the incident which had occurred on 19^th April, 2004 in the Court premises in CR No. 45 of the Special Court. That incident had occurred after the Special Judge retired to his Chamber. Suffice it to notice that the report from Deputy Commissioner of Police Shri. Sengaonkar was submitted directly to the Court. The Court, after scrutinizing 14 witnesses examined in support of complaint and

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J.V.Salunke,PA

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pleadings, verification statement of the Petitioner complainant, vide order dated 8^th September, 2004, directed the Registrar of the Court to produce, before the Commissioner of Police, Mumbai, certified true photostat copies of the documents received by the Court at the stage of pre-issuance of process, referred to in the operative part of the order. The Commissioner of Police was directed, after perusing the documents as produced before him, to hear the complainant and his Advocate and allow the complainant to place some more material if he choses to do so and after considering the same, pass an appropriate reasoned order for either grant or refusal of the statutory sanction as contemplated under Section 23(2) of the MCOCA and communicate such reasoned order to the Court, preferably on or before 15^th October, 2004. As a result of this order, the Commissioner of Police, Mumbai, after due scrutiny of the record placed before him, for grant or non grant of sanction to prosecute Respondent No. 2, in exercise of powers under Section 23(2) of the MCOCA, eventually found that no prima facie case, under the provision of the MCOCA, was made out. He, therefore, declined to grant sanction to prosecute Respondent No. 2 in exercise of powers under Section

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J.V.Salunke,PA

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23(2) of the Act. This order was then placed before the Special

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Court. The same reads thus:-

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“ In the Court of Special Judge under M. C. O. C. Act 1999 For Greater Bombay at Mumbai.

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Misc. Application No. 157/2004

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Avinash Tukaram Sanas....... V/s

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Sudhakar B. Pujari.......

Appelicant/Compltt.

Accused.

Report/Order

MAY IT PLEASE YOUR HONOUR

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It is humbly submitted as below:

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Pursuant to the order-dated 8.9.2004, received by me on 24.9.2004 along with the annexure therein, I had gone through the contents of the complaint of Avinash T. Sanas and the depositions of the witnesses recorded by the Hon'ble Court. As per the order of this Hon'ble court, I had called Avinash T. Sanas and his Advocate Dinesh Tiwari on 18^th October2004 before me and heard him and his Advocate and also asked him whether he desires to place some more facts before me. I had recorded his statement on the same day and asked him whether he would like to produce any other evidence before me.

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In his statement Avinash Sanas alleged that Shri. Sudhakar Pujari, investigating officer in M. P. S. C. Scam has direct nexus with the underworld, on the basis of the report given by Shri. Pradip Sawant, the then Dy. Commr. Of Police, Crime, to his superiors. He also alleged that Shri Sudhakar Pujari in his career of 21 years had managed to come to the Crime Branch repeatedly and has served there for 8 years and managed to stay in the Crime Branch to help the organized Crime syndicate.

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In his further statement Avinash Sanas alleged that when Shri Sudhakar Pujari was working in Anti Narcotics Cell there was a seizure of 1.5 tons of Heroin from one Nari Khan @ Noor Mohd. Pathan. Avinash Sanas alleged that Sudhakar Pujari showed only 354 Kgs. Of Heroin as seizure and remaining was sold by him in the drug market. Further he stated that Nari Khan was acquitted from the case on 6.8.1996 and he was killed in an encounter on 11.8.1996. According to Avinash Sanas Shri. Pujari was instrumental in killing Nari Khan.

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He further alleged that Kandivali Unit of Crime Branch had seized large stock of weapons in the year 2000. Out of the total stock of weapons seized, two sophisticated weapons were taken away by Shri Sudhakar Pujari. He alleged that no action was taken against Shri Pujari.

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He further told me that out of the 30 witnesses cited in his application before the Hon'ble Court has examined 14 witnesses and that he will request the Court to examine the other witnesses during the trial.

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He further requested me that I should only examine whether any prima-facie case is made out on merits, and evidence of the case will be examined during the trial and at that time he will produce additional evidence.

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He also claimed that he knew that Shri Sudhakar Pujari visited Bankok when Chota Rajan was attacked He further alleged that Sudhakar Pujari passed on the information about Chota Rajan to Chotta Shakeel. He further stated that he will produce evidence and conversation between Shri Sudhakar Pujari and the underworld during the trial. It is a fact that Sudhakar Pujari, then P. I. was sent to Bankok by Govt. of Maharashtra as a member of the team led by Shri Shankar Kamble A. C. P. Crime Branch. There is nothing on record to show any nexus between Sudhakar Pujari and Chhota Rajan or Chhota Shakeel.

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When I had asked him whether he wants to name any witness and wishes to produce any further evidence before me at this stage, he declined by saying that he would not like to name the witnesses and produce evidence at this stage because according to him prima-facie case is made out.

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After hearing and recording the statement of Avinash Sanas, again I caused enquiries into the aspects which were highlighted by him and the enquiries revealed that there was no substance in his allegations made against Sudhakar Pujari in connection with the seizure of Heroin by Anti Narcotics Cell and selling the remaining heroin and subsequent death of Nari Khan in an encounter after his acquittal from the case. The enquiries revealed that he was not present during the Police encounter with Nari Khan. He was not even a part of the team which had gone to arrest Nari Khan when the encounter with the Police Team happened in which Nari Khan died. The enquiries also revealed that he was not a part of the team which made the seizure of weapons by Crime Branch Kandivali Unit and played no role in it. The statement of Sr. P. I. Bagdi who led the seizure has been recorded in this regard.

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J.V.Salunke,PA

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The complainant Avinash Sanas has not placed by substantive material before me to show the nexus between Sudhakar Pujari and the underworld, though he claimed that he has evidence with him, which he would lead during the trial.

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I had repeatedly asked him to produce such evidence before me but he has refused to divulge the names of the witnesses and refused to produce any such evidence before me for the reasons best known to him.

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Therefore, I have to appreciate the evidence on the basis statements of 14 witnesses and the deposition of the complainant Avinash Sanas, recorded before the Hon'ble Court and his statement recorded before me.

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After perusing the evidence recorded in the Court, I have assessed the same and finally have come to a conclusion that the complainant Avinash T. Sanas has failed to connect Sudhakar Pujari with the members of the underworld. Most of the evidence brought out before the court is in the form of hearsay evidence which he could not substantiate by rpoducing the witnesses or any documents to show the complicity of Sudhakar Pujari, as required under the provisions of M. C. O. C. Act 1999 to enable me to accord sanction under Section 23(2) of the M. C. O. C. act 1999. According to him there is prima facie case made out and hence he was insisting upon me to accord sanction to prosecute Sudhakar Pujari. He further submits that the other evidence, which he claims is with him, would be tendered before the Hon'ble Court during the trial.

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On the basis of material placed before me, a prima-facie case under the provisions of M. C. O. C. Act is not made out. Hence, I am unable to accord sanction to prosecute Shri Sudhakar Pujari as required under section 23(2) of M. C. O. C. Act 1999.

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Mumbai (A. N. Roy) Dated 18.20.2004 Commissioner of Police Mumbai.”

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On receipt of the above order, the Special Court examined the matter further and after considering the rival submissions, opined that the private complaint filed by the

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Petitioner cannot be taken forward for want of sanction under Section 197 of the Code of Criminal Procedure and Section 23(2) of the MCOCA. Accordingly, the private complaint filed by the Petitioner has been rejected vide order dated 6^th November, 2004. Even this order is subject matter of challenge in the present Writ Petition, at the instance of the complainant.

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The controversy essentially revolves around the legality and justness of the sanction order passed by the Commissioner of Police dated 28^th October, 2004, which has been reproduced in its entirety hitherto. The Petitioner would succeed in getting the private complaint revived only upon setting aside of the above said order of the Commissioner of Police.

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The challenge to the sanction order, before us, during the course of argument, is only on two counts. Firstly, that the mandatory procedure prescribed by Section 23(2) of the Act has been violated. As a result of which, the order passed by the Commissioner of Police, impugned in this Petition, is vitiated and nonest in the eyes of law. Alternatively, it is contended that the

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order is bad because the Competent Authority has failed to take into account crucial documents, which were part of the record before the Special Court, in the form of inquiry report of the Deputy Commissioner of Police Shri. Sengaonkar, which plea is sought to be buttressed on the basis of the reasons recorded by the Commissioner of Police, in the impugned order dated 28^th October, 2004. No other argument has been advanced before us.

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Reverting to the first argument, the same is founded on the premise that the report of Deputy Commissioner of Police Shri. Sengaonkar, which was part of the proceedings before the Court, was not placed before the Sanctioning Authority. This argument,

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even if accepted, however, cannot be the basis to hold that procedure under Section 23(2) of the Act has not been complied with. The mandate of Section 23(2) is that no Special Court shall take cognizance of any offence under the MCOCA without the previous sanction of the specified police officer. It is not the argument of the Petitioner that the Commissioner of Police, who examined the sanction proposal, was in fact or in law incompetent to or had no authority to consider the matter in issue. No such

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grievance has been made nor can be entertained at the instance of this Petitioner, who has allowed the order passed by the Special Court dated 8^th September, 2004 to become final. For, the matter was placed before the Commissioner of Police, Mumbai pursuant to the directions given by the Court in the said order. In any case, the ground, on which this argument is pressed into service, is ill advised. Inasmuch as, all the documents referred to in the operative part of the order dated 8^th September, 2004 of the Special Court, such as copies of statements made by 14 witnesses examined in support of the complaint, copies of the exhibits and documents received by the Court during the course of inquiry into the complaint at the stage of pre-issuance of process and more particularly copies of the report from Deputy Commissioner of Police Shri. Sengaonkar, have been made part of the proposal placed before the Commissioner of Police, Mumbai, for consideration. That fact is reinforced from the impugned order of the Commissioner of Police, which pointedly refers to the documents received by him in the proposal along with the order dated 8^th September, 2004 of the Special Court and annexures accompanying thereto. This can be discerned from the opening

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part of the impugned order itself. The fact that he considered the entire material placed before him is stated even in the concluding paragraph. Similarly, from the confidential communication sent from the Commissioner of Police to the Special Court, on 21^st July, 2004, being his covering letter forwarding copy of his report/order at page 122 of the paper book also discloses that the said Authority was cognizant of the report of Deputy Commissioner of Police Shri. Sengaonkar and pursuant to which, he was called upon to examine the matter further by the Court. Suffice it to observe that there is no merits in the ground under consideration that the impugned order of the Commissioner of Police dated 28^th October, 2004 is vitiated due to non compliance of the mandatory procedure under Section 23(2) of the Act.

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That takes us to the alternative ground urged before us. It proceeds on the premise that the Commissioner of Police has failed to consider the said report of the Deputy Commissioner of Police (Detection) Shri. Sengaonkar. This ground can be straight away answered on the basis of the contents of the impugned order of the Commissioner. As aforesaid, it refers to the inclusion of the

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report of the Deputy Commissioner of Police (Detection) Shri. Sengaonkar, in the proposal submitted to him for his consideration. The impugned order of the Commissioner of Police, Mumbai then refers to the submission made before him; and in the concluding part of the order has recorded his satisfaction that no prima facie case about the commission of offence by Respondent No. 2, punishable under the provisions of the MCOCA, was made out. This satisfaction has been reached on the basis of material placed before the Authority, as is contemporaneously noted in the order. The fact that the Authority has not analysed the efficacy of the report of Deputy Commissioner of Police (Detection) Shri. Sengaonkar, in the impugned order, does not mean that the said report or the documents appended to that report were not considered by the Commissioner of Police. Thus, the documents sent along with the proposal included the report of Deputy Commissioner of Police and the documents accompanying thereto. Accordingly, it is not a case of non consideration of the said report or the accompanying documents thereto by the Commissioner of Police, as is sought to be projected.

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Even assuming that the impugned order of the Commissioner of Police has failed to specifically mention the fact that the said report of Deputy Commissioner of Police Shri. Sengaonkar and its accompaniments were part of the proposal material, it is well established position that the Authority can justify the sanction order by extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the Sanctioning Authority. Therefore, the argument of the Petitioner that the subjective satisfaction of the Authority is vitiated because of non consideration of the report of Deputy Commissioner of Police Shri. Sengaonkar or for that matter documents accompanying thereto is devoid of merits and does not commend to us.

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The Counsel for the Petitioner has placed reliance on

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the decision of the Apex Court in the case of Mansukhlal Vithaldas Chauhan vs. state of Gujarat² , in particular on the exposition at Paragraph 17 and 18 thereof. The same reads thus:-

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“ 17. Sanction lifts the bar for prosecution. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to

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2 (1997) 7 SCC 622

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government servants against frivolous prosecutions. ( See Mohd. Iqbal Ahmed v. State of A.P5) Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty.

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The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence have been considered by the sanctioning authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. This fact can also be established by extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning authority. ( See also Jaswant Singh v. State of Punjab6 and State of Bihar v. P. P. sharma7 ) ”

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We may also usefully refer to Paragraph 19 of this

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decision, which reads thus:-

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“ 19. Since the validity of “sanction” depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority “not to sanction” was taken away and it was compelled to act mechanically to sanction the prosecution.”

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In the present case, we are not inclined to accept the argument of the Petitioner that the report of Deputy Commissioner of Police Shri. Sengaonkar and its accompaniments were not placed before the Sanctioning Authority. We hold that the said report and its accompaniments were part of the proposal submitted to the Commissioner of Police. We also uphold the argument of the Respondents that there is intrinsic evidence in the impugned order itself to suggest that the Commissioner of Police considered the said report and the documents accompanying thereto for arriving at the subjective satisfaction that no prima facie case was made out to proceed against Respondent No. 2 for offence punishable under the provisions of the MCOCA. The argument of the Petitioner that since the analysis of the said report or the documents accompanying thereto is not found in the impugned order of the Commissioner of Police; it would necessarily follow that the subjective satisfaction recorded by the Authority is vitiated, also does not commend to us. The Counsel for the Petitioner, in all fairness, accepts that there is no law which requires the Sanctioning Authority to record reasons in the sanction order or about the efficacy of the concerned material

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placed before him. The Apex court, in Paragraph 18, in the case of Mansukhlal Chauhan ( supra), has restated the legal position that the material placed before the Authority was considered, can be established by extrinsic evidence by placing the relevant files before the Court. Suffice it to observe that in the present case, the order itself plainly mentions that the report and its accompaniments were part of the proposal considered by the Authority and the subjective satisfaction was recorded on the basis of the material placed before him.

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The further argument of the Petitioner is that the said report of Deputy Commissioner of Police Shri. Sengaonkar contains vital documents. In the first place, each of the documents referred to in the report of Deputy Commissioner of Police Shri. Sengaonkar were part of the proposal placed before the Commissioner of Police. Secondly, the impugned order passed by the Authority is indicative of the fact that the entire material placed before the Authority was considered before recording subjective satisfaction. Further, We fail to understand as to how the report of Deputy Commissioner of Police Shri. Sengaonkar is of

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any assistance to the Petitioner, as it does not even remotely indicate the complicity of Respondent No. 2. Suffice it to observe that the argument of non application of mind resulting in vitiating the subjective satisfaction recorded in the impugned order dated 28^th October, 2004 is devoid of merits and cannot be accepted in the fact situation of the present case.

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A priori, the challenge to the impugned order of the Commissioner of Police dated 28^th October, 2004 must fail and as a necessary consequence, no fault can be found with the consequential order of the Special Court dated 6^th November, 2004, rejecting the private complaint filed by the Petitioner, as the Court would have no jurisdiction to take cognizance of the offence in question, in absence of a valid sanction order, to prosecute the offender named therein.

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Accordingly, this Petition fails. The same is dismissed.

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(K.K.TATED,J.) (A.M.KHANWILKAR,J.)

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Avinash Tukaram Sanas v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Avinash Tukaram Sanas v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

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