ORDER
T.K. Chandrashekhara Das, J.
1. Rule, By consent Rule made returnable forth with.
2. Heard both sides.
3. The Petitioner seeks to revise the order dated 21-1-2000 passed by the Special Judge, Maharashtra Control of Organized Crime, Greater Bombay which reads as under :
Oral application to have an access to the Remand application of the Ld. advocate for the accused stands rejected. Accused by separate order are remanded to judicial custody till upto and inclusive of 1-2-2000.
4. This order came to be passed by the Court below on a request made by the persons including petitioner Nos. 1 to 3 to have access to the remand application made by the Public Prosecutor. Petitioner Nos. 1 to 3 are implicated in D.C.P. CR. No. 103ofl999 (Pydhonie Police Station C. R. No. 290 of 1999) for the offences punishable under Section 302, 120(b) read with 34 of I.P.C. and also Sections 3, 25 and 27 of the Arms Act. It is to be noted that 4th Petitioner is not implicated in that C.R. The case of the Petitioners is that apart from the above C.R. they were taken to custody under the provisions of Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred to as “the said Act”) and every interval between remands that has been prescribed in Section 21 of the said Act, they are being produced before the Special Judge and the prosecution is obtaining remand of the Petitioners without divulging the contents of the remand application.
5. In this context, the short grievance that Mr. Memon counsel for the Petitioners tried to make out is that whenever they are subjected to the remand on the application for remand, they are entitled to know the contents of the remand application consistent with the provisions of Section 167 of Cr.P.C. According to him in every criminal case, when the accused are remanded under Section 167, the prosecutors are furnishing copy of the remand application so that the concerned accused will come to know the circumstances in which the remand was sought. This is being done for enabling the accused to formulate their own defence and to obviate arbitrariness and secure fair treatment. According to the counsel, this opportunity cannot be taken away from the present petitioners and the Special Judge denying the opportunity to have access to remand application, is a clear violation of Section 167 of Cr.P.C.
6. He also contended that denial of the access to remand application, does amount to infraction of fundamental rights as enshrined under Article 21 of the Constitution of India.
7. A detailed reply has been filed by the State, Additional Advocate General appearing for the State made available to me copy of the remand application. I have perused the same. According to Mr. Janardhan, Additional Advocate General, under Section 19 of the said Act, certain materials and information are intended to be kept secret and those are enumerated in detail in that section. According to him remand application is full of such materials and information which has to be kept secret even by the Court. For appreciating his argument, I think it is necessary to extract Section 19 of the said Act which reads as follows :-
Protection of Witness :-
(1) Notwithstanding anything contained in the Code, the proceeding under this Act may be held in Camera, if the Special Court so desires.
(2) A Special Court may, on an application made by a witness in any proceeding before it or by the public Prosecutor in relation to such witness or on its own motion, take such measures as it deems fit for keeping the identity and address of any witness secret.
(3) In particular, and without prejudice to the generality of the provisions of Sub-section (2), the measures which a Special Court may take under that sub-section may include :-
(a) the holding of the proceedings at a place to be decided by the Special Court;
(b) the avoiding of the mention of the names and addresses of the witnesses in its orders or judgments or in any records of the case accessable to public.
(c) the issuing of any directions for securing that the identity and addresses of the witnesses are not disclosed ;
(d) that, it is in the public interest to order that all or any of the proceedings pending before such a Court shall not be published in any manner.
(4) Any person who contravenes any direction issued under Sub-section (3) shall be punished with imprisonment for a term which may extend to one year and with fine which may extend to one thousand rupees.
8. On a perusal of Section 19 of the said Act, it will be crystal clear that the Legislature has intended that certain materials and information are to be kept in secret and the Court is bound to maintain that secrecy through out the proceedings and on going through the order under Revision, I find that the lower Court is perfectly justified in passing the order under Revision.
9. Mr. Memon, learned counsel for the Petitioner, however, contended that the action of the learned Special Judge is directly offending the Article 21 of the Constitution of India, in compliance with the said Article, learned Special Judge, ought to have given necessary information that is required for the defence or engaging the lawyer or to furnish basic facts to formulate their defence. With great respect, I cannot agree to this submission because this is not a case where the vires of the said Act is under challenge. The justification of the order passed by the Special Judge has to be viewed in the context of the Act and not in the context of the Constitution because Article 21 clearly states that liberty of a citizen is subject to the due process of law. It is no doubt that MCOC and Cr.P.C. are part of such process of law as to what extent and under which circumstances liberty of a citizen can be curtailed. They are laying down the procedures. Whether such restriction imposed by the said Act offends any fundamental right of the citizen particularly Article 21 is not the subject matter of the Revision Application as provisions of the said Act have not been challenged as ultra vires of the Constitution before me. That cannot be a debatable question in this Revision application at all. Therefore, I have to confirm my scrutiny of the revisional Court’s order with four corners of the Cr.P.C. and also the said Act, particularly, under Section 167 and also Section 19 and 21 of the M.C.O.C. Act. By a plain reading of Sub-section (4) of Section 19, it will be clearly amplified that how sternly the legislature wanted to deal with the person who violates any of the provisions of Section 19. The Legislature thought in their wisdom that such stringent provisions are necessary because the said Act deals with such incorrigible organized criminals whose activities cannot be controlled and it is not ordinarily possible to bring them to books by the ordinary law of the land. Contention of the learned counsel for the petitioner that at least the opportunity that has been afforded by Section 167 of the Code of Criminal Procedure can not be denied to them. As I indicated earlier, Section 19 of the said Act laid down certain norms of discipline required to be observed through out the proceedings. Since the said Act is a special enactment intended to deal with a separate class of criminals, it excludes the provisions of Section 167 of Code of Criminal Procedure which is a general Act.
10. In view of the above, I do not find any illegality in the order passed by the Special Judge. The special Judge has very rightly rejected the oral request made by the petitioners for access to the remand application. No interference is called for Criminal Application is, therefore, dismissed. Rule is discharged accordingly.