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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.2075 OF 2009
Vijay Anant Vashirde, residing at )
Room No.8/9, Laxmi Building, )
366/68, Maulana Azad Road, )
Girgaon, Mumbai - 400 004, at )
present in judicial custody and )
lodged at Mumbai Central Prison, )
Mumbai. ig ) ... Petitioner
Vs.
The State of Maharashtra, (at the )
instance of Assistant )
Commissioner of Police, D-1 )
(South), Mumbai vide D.C.B., )
C.I.D., C.R. No.42 of 2009 (V.P. )
Road Police Station C.R. No.55 of )
2009). ) ... Respondents
Mr. S.R. Chitnis, senior counsel with Mr. S.R. Pasbola and
Mr. Rahul Arote for the petitioner.
Mr. V.R. Dhond, special counsel with Ms. U.V. Kejariwal,
A.P.P. for the State.
CORAM: SMT. RANJANA DESAI &
MRS. MRIDULA BHATKAR, JJ.
DATE ON WHICH THE ORDER IS
RESERVED : 10TH MARCH, 2010.
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DATE ON WHICH THE ORDER IS
PRONOUNCED: 7TH MAY, 2010.
JUDGMENT :- (Smt. Ranjana Desai, J.)
1. The petitioner is an accused in MCOC Special Case
No.6 of 2009. In this petition filed under Article 226 of the
Constitution of India, the petitioner has prayed, inter alia,
that directions be issued to the State of Maharashtra to
establish a Review Committee on the lines of directions
given by the Supreme Court in Kartar Singh v. State
of Punjab, 1994 SCC (Cri.) 899 and as incorporated in
POTA (Amendment) Act, 2003 (since repealed), so as to
screen the abuse and misuse of the provisions of the
Maharashtra Control of Organized Crime Act, 1999 (“for
short, “MCOCA”), that all pending cases and newly
registered cases be referred to a Review Committee and
that it may be declared that the provisions of MCOCA are
not attracted to the petitioner’s case.
2. It is necessary to state certain facts for better
appreciation of the rival submissions. The Terrorist &
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Disruptive Activities (Prevention) Act, 1987 (for short,
“TADA”) was enacted to make special provisions for the
prevention of, and for coping with, terrorist and disruptive
activities. In Kartar Singh, constitutional validity of
TADA was challenged. Section 15 of TADA which made
confession made by a person before a police officer not
lower in rank than a Superintendent of Police admissible
in evidence came under heavy attack. The Supreme
Court agreed that it would be dangerous to make a
statement given to a police officer admissible. The
Supreme Court held that having regard to the legal
competence of the legislature to make the law prescribing
a different mode of proof, the meaningful purpose and
object of the legislation, the gravity of terrorism
unleashed by the terrorists endangering the sovereignty
and integrity of the country and the normal life of the
citizens, section 15 cannot be said to be suffering from
the vice of unconstitutionality. However, the Supreme
Court laid down guidelines so as to ensure that confession
obtained in the pre-indictment interrogation is not tainted
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with any vice, but is in strict conformity with well-
recognized and accepted aesthetic principles and
fundamental fairness. The Supreme Court directed the
Central Government to take note of the guidelines and
incorporate them by appropriate amendments in TADA. In
order to ensure higher level of scrutiny and applicability of
TADA, the Supreme Court expressed that there must be
Review Committee
ig constituted by the Central
Government. It is necessary to quote paragraph 265 of
the judgment.
“265. In order to ensure higher level
of scrutiny and applicability of TADA
Act, there must be a screening
Committee or a Review Committee
constituted by the Central Governmentconsisting of the Home Secretary, Law
Secretary and other secretaries
concerned of the various Departments
to review all the TADA casesinstituted by the Central Government
as well as to have a quarterly
administrative review, reviewing the
States’ action in the application of the
TADA provisions in the respective
States, and the incidental questions
arising in relation thereto. Similarly,
there must be a Screening or Review
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5constituted by the respective States
consisting of the Chief Secretary,
Home Secretary, Law Secretary,
Director General of Police (Law andOrder) and other officials as the
respective Government may think it
fit, to review the action of the enforcing
authorities under the Act and screen thecases registered under the provisions of
the Act and decide the further course of
action in every matter and so on.”
3.
In Shaheen Welfare Association v. Union of
India & Ors. (1996) 2 SCC 616, in a public interest
litigation, certain directions were sought in respect of
under-trial prisoners charged with offences under TADA.
The Supreme Court, not being entirely satisfied with the
functioning of the Review Committee expressed that a
more independent and objective scrutiny of the cases by a
Committee headed by a retired Judge is obviously
necessary. We shall advert to this case a little later.
4. In 1995, TADA lapsed. The Prevention of Terrorism
Ordinance, 2001 was promulgated on 24/10/2001. It was
followed by the Prevention of Terrorism (Second)
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Ordinance promulgated on 30/12/2001. In 2002, the
Prevention of Terrorism Act, 2002 (for short, “POTA”)
was enacted replacing Prevention of Terrorism (Second)
Ordinance, 2001. Section 60 of POTA provided for a
Review Committee. Sub-sections (4) to (6) were added to
Section 60 of POTA by Prevention of Terrorism
(Amendment) Ordinance, 2003. The said ordinance was
further amended
by the Prevention of Terrorism
(Amendment) Act, 2003 which inserted sub-sections (4) to
(6) as also further sub-section (7) in Section 60. The
amended Section 60 reads thus:
“60. Review Committees. – (1) The
Central Government and each State
Government shall, whenever necessary,constitute one or more Review
Committee for the purposes of this Act.
(2) Every such Committee shall
consist of a Chairperson and such other
members not exceeding three and
possessing such qualifications as may
be prescribed.
(3) A Chairperson of the
Committee shall be a person who is, or
has been, a Judge of a High Court, who
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7Government, or as the case may be, the
State Government, so however, that the
concurrence of the Chief Justice of the
High Court shall be obtained in the caseof a sitting Judge:
Provided that in the case of a
Union Territory, the appointment of aperson who is a Judge of the High Court
of a State shall be made as a
Chairperson with the concurrence of the
Chief Justice of the High Courtconcerned”.
(4) Without prejudice to the other
provisions of this Act, any Review
Committee constituted under sub-
section (1) shall, on an application by
any aggrieved person, review whether
there is a prima facie case for
proceeding against the accused underthis Act and issue directions
accordingly.
(5) Any direction issued under
sub-section (4), –
(i) by the Review Committee
constituted by the Central Government,
shall be binding on the Central
Government, the State Government andthe police officer investigating the
offence; and
(ii) by the Review Committee
constituted by the State Government,
shall be binding on the State
Government and the police officer
investigating the offence.
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(6) Where the reviews under sub-
section (4) relating to the same offence
under this Act, have been made by a
Review Committee constituted by the
Central Government and a Review
Committee constituted by the State
Government, under sub-section (1), any
direction issued by the Review
Committee constituted by the Central
Government shall prevail.
(7) Where any Review Committee
constituted under sub-section (1) is of
opinion, that there is no prima facie
case for proceeding against the
accused and issues directions under
sub-section (4), then, the proceedings
pending against the accused shall be
deemed to have been withdrawn form
the date of such direction.”
5. In view of adverse report about misuse of POTA,
Parliament repealed it by the Prevention of Terrorism
(Repeal) Ordinance, 2004 on 21/9/2004 and replaced it by
the Prevention of Terrorism (Repeal) Act, 2004 (for short,
“the Repealing Act”). Section 3 of the Repealing Act
made it clear that notwithstanding the repeal of Section
60 of the principal Act, the Review Committee constituted
by the Central Government under Sub-Section (1) of that
Section shall review all cases registered under the
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principal Act and such review shall be completed within a
period of one year from the commencement of the
Repealing Act. Section 5 stated that the Central
Government may constitute more Review Committees as
it may consider necessary, for completing the review
within the period specified in sub-Section (3).
6.
It is in short the case of the petitioner, as presented
to us by Mr. Chitnis, learned senior counsel, that the
provisions of MCOCA are drastic and perhaps more stricter
than TADA. There are several cases of misuse of MCOCA
and, therefore, the provisions of the Review Committee as
incorporated in POTA and retained by the Repealing Act
pursuant to the Supreme Court’s directions in Kartar
Singh be incorporated in MCOCA.
7. Counsel submitted that the Review Committee acts
as a filter. TADA, POTA or MCOCA are draconian
legislations. Though validity of MCOCA is upheld, its
arbitrary, capricious and revengeful use must be
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prevented. It’s misuse is evident from several orders of
this court where this court has held that MCOCA was
wrongly applied. Counsel has drawn our attention to
following cases where according to him, MCOCA has been
misused :
(i) State of Maharashtra & Ors. v. Lalit
Nagpal & Anr. (2007) 4 SCC 171,
(ii) Madan s/o. Ramkisan Gangwani v.
State of Maharashtra 2009 All M.R.
(Cri.) 1447,
(iii) Pradip Madgaonkar v. State of
Maharashtra, 2007 (1) BCR (Cri.)337,
(iv) Moh. Rizwan Mohd. Isaq @
Laddowala v. State of Maharashtra,
2005 All M.R. (Cri.) 2959,
(v) Sherbahadur A. Khan v. State of
Maharashtra, 2007 All M.R. (Cri.),
(vi) State of Maharashtra v. Bharat
Baburao Gavhane 2006 All M.R.
(Cri.) 2895 and
(vii) unreported decisions of this court
in Criminal Appeal No.1040 of 2006
and Criminal Appeal No.667 of
2009.
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8. Counsel laid stress on the guidelines issued by the
Supreme Court in Kartar Singh to the police for the
purpose of recording confessional statements under
Sections 15 of TADA to secure fundamental fairness.
Counsel pointed out that the Central Government was
directed to incorporate them by appropriate amendments
in TADA and in the rules. Counsel pointed out that the
Supreme Court directed constitution of Review Committee
of high officials to review the cases so as to ensure higher
level of scrutiny and applicability of TADA. Drawing our
attention to Shaheen Welfare Association, counsel
submitted that in this case the Supreme Court referred to
Kartar Singh and held that the need of Review
Committee is borne out by the cases disclosed in the
annexure to the affidavit where TADA ought not to have
been applied. Counsel submitted that in this case, the
Supreme Court went on to observe that a more
independent and objective scrutiny of the cases by a
committee headed by a retired Judge is necessary.
Counsel submitted that this judgment was in the field
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when MCOCA was enacted and, therefore, the State
should have taken note of it. Provision for Review
Committee ought to have been incorporated in MCOCA.
Counsel submitted that Section 18 of MCOCA makes
certain confessions made to police officers admissible. It
is similar to Section 15 of TADA. While enacting MCOCA,
the legislature incorporated the important guidelines laid
down in Kartar Singh for the purpose of recording
confessional statements. The legislature should have
therefore also made provision for a Review Committee as
directed in Kartar Singh and which was followed while
enacting the amended POTA.
9. Counsel submitted that the argument that there are
sufficient safeguards in Section 23 of MCOCA namely
prior approval of the police officer not below the rank of
the Deputy Inspector General of Police before recording
of information about the commission of an offence of
organized crime and the condition that no court shall take
cognizance of the offence under MCOCA without the
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previous sanction of the police officer below the rank of
Additional Director General of Police, to prevent abuse of
MCOCA must be rejected. Similar provision of approval
and sanction was there in TADA also, yet the Supreme
Court directed constitution of a Review Committee.
Counsel submitted that in any case the so called
safeguards have not been able to prevent abuse of
MCOCA.
10. In this connection, counsel relied on Dwarka Nath
v. Income-tax Officer, AIR 1966 SC 81 where the
Supreme Court has observed that Article 226 is couched
in comprehensive phraseology and it ex facie confers a
wide power on the High Court to reach injustice wherever
it is found. Counsel also relied on Deepak Bajaj v.
State of Maharashtra, AIR 2009 SC 628 where the
Supreme Court has observed that under Article 32 and
Article 226 of the Constitution, the Supreme Court and the
High Court can issue writs in the nature of habeas corpus,
mandamus, certiorari, etc. They can also issue orders and
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directions apart from issuing writs and their powers are
not subject to traditional restrictions on the powers of the
Supreme Court and the High Court. Reliance was also
placed on the Supreme Court judgment in Public Union
for Civil Liberties & Ors. v. Union of India (1997) 1
SCC 301. Counsel also relied on a judgment of a Division
Bench of this court to which one of us (Smt. Ranjana
Desai, J.) was a party in Govind @ Bhai Ganesh Tilve
v. Vikram Kumar & Ors. 2009 All M.R. (Cri.) 2389
where this court has translated Election Commission of
India’s suggestions into guidelines. Counsel also relied on
Vishakha & Ors. v. State of Rajasthan & Ors.
(1997) 6 SCC 241, where, to provide for the effective
enforcement of the basic human right of gender equality
and guarantee against sexual harassment and abuse,
more particularly at workplaces, the Supreme Court laid
down guidelines and norms. Counsel also relied on
Sheela Bave v. State of Maharashtra AIR 1983 SC
378, Som Mittal v. Government of Karnataka
(2008) 3 SCC 753 and Securities & Exchange Board
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of India v. Libra Plantation Limited & Ors. 1998 (4
L.J. 421. Counsel submitted that, therefore, there are no
fetters on the powers of this court preventing it from
directing constitution of a Review Committee. Written
submissions filed by Mr. Chitnis on legal points have been
taken on record.
11. On merits of the case, Mr. Chitnis has submitted
another set of submissions. We, however, find that these
submissions revolve around validity of a sanction. It is
stated that in the satisfaction recorded in the sanction, it
is averred that the sanctioning authority was satisfied that
there is sufficient evidence to prove continuous unlawful
activities of the organized crime syndicate headed by
accused Deepak Walekar and his associates and more
than one charge-sheets have been filed against them
within the last ten years. Relying on the judgment of this
court in Madan Ramkisan Gangwani, it is stated that
organized crime is constituted by at least one instance of
continuation, apart from continuing unlawful activity
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evidenced by more than one charge-sheets in the
preceding ten years. However, in this case, sanction is for
prosecution of a continuous unlawful activity. It is
submitted that what is punishable under Section 3 is
`organized crime’ and not `continuing unlawful activity’.
Continuing unlawful activity as stated in Section 2(d) is an
ingredient of Section 2(e) of MCOCA which defines
`organized
crime’. Continuing unlawful activity
evidenced by more than one charge-sheets is one of the
ingredients of the offence of organized crime. It is
submitted that since sanction is not for taking cognizance
of `organized crime’ as defined in Section 2(e), the
sanction must be set aside.
12. Relying on Rambhai Nathabhai Gadhvi v. State
of Gujarat 1997 Cr. L.J. 4086 (S.C.), it is submitted
that valid sanction is a sine qua non for the prosecution
and if there is no valid sanction prosecution cannot be
initiated. Reliance is also placed on Lalit Nagpal,
Ranjitsingh Brahmajeetsingh Sharma v. State of
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Maharashtra, 2005 Cri.L.J. 2533 and Sherbhahadur
Akram Khan v. State of Maharashtra 2007 (1) BCR
(Cri.) 26.
13. Mr. Dhond, learned counsel who appears for the
State has submitted written submissions which we have
taken on record. Mr. Dhond submitted that the petitioner
wants this court to direct the State to amend valid state
legislation or to enact additional legislation which it
cannot do. Mr. Dhond submitted that MCOCA contains
several provisions and mechanism to prevent its misuse.
Section 23 thereof has been described as a filter by the
Supreme Court in Vinod Asrani v. State of
Maharashtra (2007) 3 SCC 633 and by this court in
Pradeep Madgaonkar v. State of Maharashtra 2007
(1) Bom.C.R. (Cri) 337. Comparing the provisions of
TADA and MCOCA, counsel submitted that TADA was a
more stringent law than MCOCA.
14. Counsel submitted that the decision not to include
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Review Committee is consciously taken. The majority of
the members of the State Level Committee to review
MCOCA did not favour the introduction of the Review
Committee. However, all the three members were
unanimous that there was no misuse of MCOCA.
15. Counsel submitted that the Supreme Court has
upheld the
constitutional validity of MCOCA. The
legislative policy is in the exclusive domain of the State.
The nature and extent of safeguards and/or protections
which ought to be introduced in a statute is a matter of
policy in which the court cannot interfere. In this
connection, he relied on C.S.T. v. Mangal Sen Shyam
Lal (1975) 4 SCC 35, State of West Bengal v.
E.I.T.A. India Ltd. (2003) 5 SCC 239, Duncan
Industries Ltd. v. Union of India (2006) 3 SCC 129,
Karnataka Bank Ltd. v. State of A.P. & Ors. (2008)
2 SCC 254. He also relied on State of A.P. v.
McDowell & Co. (1996) 3 SCC 709, Asif Hamid &
Ors. v. State of J. & K. & Ors. 1989 Supp. (2) SCC
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364 and State of U.P. & Anr. v. Johri Mal (2004) 4
SCC 714 on the question whether courts can sit in
judgment over legislative competence.
16. Counsel submitted that it is well settled that the
Court cannot direct the State to legislate. In this
connection, he relied on State of Himachal Pradesh v.
A parent of a student (1985) 3 SCC 169, Narinder
Chand Lt. Governor v. A.U.T.H.P. & Ors. 1971 (2)
SCC 747, State of A.P. v. T. Gopalkrishnan Murthi
(1976) 2 SCC 883, State of J. & K. v. A.R. Zakki
1992 (Supp.) (1) SCC 548, State of Karnataka v.
State of A.P. & Ors. (2000) 9 SCC 572, Municipal
Committee Patiala v. Model Town Resident’s
Association & Ors. (2007) 8 SCC 669 and Common
Cause (A. Regd. Society) v. Union of India (2008) 5
SCC 511.
17. Counsel submitted that none of the cases on which
reliance is placed by the petitioner help him. We shall
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advert to this argument when we approach this point.
18. Counsel submitted that what the Supreme Court did
in Kartar Singh was in exercise of the extra-ordinary
jurisdiction constitutionally conferred on that court under
Article 142(1) of the Constitution. Powers of the High
Court under Article 226 are not on par with the
constitutional jurisdiction conferred on the Supreme Court
under Article 142. In this connection, reliance was placed
on State of H.P. & Ors. v. Mahendra Pal & Anr.
1995 Supp. (2) SCC 731, Johri Mal and State of
Haryana v. Naresh Kumar Bali (1994) 4 SCC 448.
19. Counsel submitted that directions issued under
Article 142 are not law under Article 141. In this
connection, he relied on J & K Public Service
Commission & Ors. v. Dr. Narinder Mohan & Ors.
(1994) 2 SCC 630.
20. Counsel submitted that in most cases cited by the
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appellant, MCOCA was erroneously applied because of
lack of clarity amongst enforcement agencies on the
interpretation and meaning to be placed on the words /
expressions “organized crime”, “organized crime
syndicate”, “with the object of gaining pecuniary
benefits”. They do not cover cases of abuse of MCOCA.
So far as Tilve is concerned, counsel submitted that that
case has no application to the present case. In that case,
the court passed an order invitum and, hence, it cannot
be treated as a precedent.
21. On the merits of the case, it is submitted that
application of MCOCA is perfectly justified. It is clearly
evident from the material on record that the petitioner
and the members of the Pandav Putra Gang indulge in
organized crime for gaining pecuniary benefits. It is
submitted that sanction is perfectly legal because there
was enough material before the sanctioning authority to
form its opinion and the sanction is issued after due
application of mind and, therefore, Rambhai Gadhvi and
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Lalit Nagpal have no application to this case. It is
submitted that Gangwani also has no application to this
case. Mr. Dhond submitted that in the circumstances, the
petition be dismissed.
22. In our opinion, the core issue in this case is whether
we can grant prayer “b” of the petition. By that prayer,
the petitioner is seeking a direction from this court to the
State Government to establish / constitute a Review
Committee so as to screen the abuse of MCOCA.
Indirectly, the petitioner is asking this court to direct the
legislature either to amend MCOCA or to enact a new law.
Having perused the number of judgments to which our
attention is drawn by Mr. Dhond, we are of the opinion
that we cannot issue such a direction. It is not necessary
to burden this judgment with all the judgments. We may
refer to a few of them.
23. In the State of Himachal Pradesh v. A parent
of a student, a guardian of a student had addressed a
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letter to the Chief Justice of the High Court complaining
about ragging of his son. The High Court treated the
letter as a writ petition and directed the State
Government to constitute an anti-ragging committee and
called for its report. The report suggested that the State
Government should initiate a legislation in regard to
ragging as early as possible. The High Court directed the
State Government to file an affidavit setting out further
action taken in the direction of the implementation of that
recommendation. The Supreme Court disapproved of the
High Court’s approach and observed that the High Court
was clearly in error in issuing the direction in question as
it was indirect attempt to compel the State Government to
initiate legislation against ragging which it was not
entitled to do. It was not a matter within the sphere of
the function and duties allocated to the judiciary under
the Constitution. The Supreme Court further observed
that the court can compel the executive to carry out its
constitutional and legal obligations, but at the same time,
it cannot assume the functions assigned to the executive
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and the legislature under the Constitution. It cannot even
indirectly require the executive to introduce a particular
legislation or the legislature to pass it or assume to itself a
supervisory role over the law making activities of the
executive and the legislature.
24. In M/s. Narinder Chand, the appellant was
aggrieved by the fact that despite assurance given by the
Deputy Commissioner, Simla, that no sales tax would be
payable on Indian made foreign liquor, the Government
levied and collected it from the appellant. It was urged
that till reorganization of Punjab in 1956, Simla was a part
of Punjab. As per Section 6(1) of the Punjab Sales Tax
Act, 1948, tax was not payable on the sale of goods
specified in Schedule “B”. Till 31/8/1966, Indian made
foreign liquor was in Schedule “B”. But, on that date, the
Government of Punjab in exercise of powers conferred
under proviso to Section 5 of the Punjab Sales Tax Act
deleted Indian made foreign liquor from Schedule “B” and
included it in Schedule “A”. From that date, Indian made
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foreign Liquor became exigible to sales tax. This was the
law in force in the Punjab when reorganization took place.
Hence, Simla and other areas which were formerly part of
undivided Punjab continued to be governed by that law
even after reorganization. Appellant sought a direction
from the the court to the Competent Authority to delete
the concerned entry from Schedule “A” and include it in
Schedule “B”.
While rejecting this prayer, the Supreme
Court observed –
“The power to impose a tax is
undoubtedly a legislative power. That
power can be exercised by thelegislature directly or subject to certain
conditions. The legislature may
delegate that power to some other
authority. But the exercise of thatpower whether by the legislature or by
its delegate is an exercise of a
legislative power. The fact that the
power was delegated to the executivedoes not convert that power into an
executive or administrative power. No
court can issue a mandate to a
legislature to enact a particular law.
Similarly, no court can direct a
subordinate legislative body to enact or
not to enact a law which it may be
competent to enact”.
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In view of the clear view expressed by the Supreme
Court, it is not possible for us to assume the role of the
legislature or to issue directions to the legislature to
legislate.
25. We have already noted that the petitioner is trying to
draw support from the fact that in Kartar Singh while
dealing with
TADA, the Supreme Court laid down
guidelines so as to ensure that the confessions obtained
in the pre-indictment interrogation by a police officer are
not tainted but they are in conformity with fundamental
fairness. The Supreme Court also directed the
constitution of a Review Committee. Thereafter, TADA
lapsed. In POTA, a provision was made for a Review
Committee. While enacting MCOCA, the legislature
incorporated the important guidelines laid down by the
Supreme Court in Kartar Singh in regard to recording of
confessional statements. Therefore, it is urged that
Kartar Singh is a law declared by the Supreme Court
within the meaning of Article 141 of the Constitution
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which is binding on all courts. It is argued that the State
should have incorporated provisions for Review
Committee in MCOCA in deference to Kartar Singh, but
since it has not done so this court can issue similar
directions as were issued under Article 141 of the
Constitution and direct the State to enact such a
provision.
26. In our opinion, the Supreme Court has issued
guidelines in Kartar Singh in exercise of extraordinary
jurisdiction conferred on it under Article 142(1) of the
Constitution. We are afraid that we cannot issue any such
directions in our jurisdiction under Article 226 of the
Constitution as these powers are not comparable to the
extra-ordinary powers of the Supreme Court under Article
142(1) of the Constitution.
27. In Naresh Kumar Bali, the High Court had issued an
order directing the State to appoint the respondent as
Inspector of Police within three months. Disapproving the
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High Court’s direction, the Supreme Court observed that
the High Court could have merely directed consideration
of the claim of the respondent in accordance with rules. It
could not have directed appointment. Such a direction
does not fall within the scope of Mandamus. The Supreme
Court observed that judicial review is against the decision
making process and not against the decision itself. The
Supreme Court clarified that the exercise of extra-
ordinary jurisdiction conferred upon the Supreme Court
under Article 142(1) of the Constitution can be of no
guidance to the scope of Article 226 of the Constitution.
28. In State of H.P. & Ors. v. Mahendra Pal & Anr.
1995 (Supp.) (2) SCC 731, the High Court had
restrained the Himachal Pradesh Government from
enforcing the Himachal Pradesh Kutlehar Forest
(Acquisition of Management) Act, 1992. The Supreme
Court held that the High Court was not justified in
restraining the State Government from implementing the
provisions of the Act passed by Parliament. The Supreme
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Court observed that while exercising the power under
Article 142, it had suspended the operation of Gudalur
Jarmon Estates (Abolition & Conversion of Ryotwari) Act
which power is not available to the High Court.
29. It is clear, therefore, that in exercise of our
jurisdiction under Article 226 of the Constitution, we
cannot issue directions to the State to amend MCOCA or
enact a new law making provision for a review
Committee. Kartar Singh cannot be read as laying down
a proposition that the High Courts are empowered to pass
orders extending guidelines issued by it to other statutes
which the High Courts regard as being in pari materia with
TADA.
30. We notice that in none of the cases on which counsel
for the petitioner has placed reliance to contend that the
direction sought by the petitioner can be issued by us in
exercise of jurisdiction under Article 226 of the
Constitution, any direction was issued to the legislature to
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enact a law.
31. In Dwarka Nath, the Supreme Court was
considering a challenge to an order passed by the
authorities exercising powers and functions under the
Income Tax Act. The Supreme Court observed that under
Article 226, the High Court could also issue directions or
writs other than prerogative writs. But, the Supreme
Court did not consider the issue whether the High Court
could issue a writ or direction against the legislature. In
Sheila Barse, also this question did not arise for
consideration. The Supreme Court held that legal
assistance to indigent persons was a constitutional
imperative and, therefore, issued directions to I.G. of
Prisons. No directions were issued against the State
Government.
32. In the case of P.U.C.L., the Supreme Court as a pro
tem measure, pending the Central Government
prescribing a procedure issued direction prescribing
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and/or regulating the procedure to be followed by
executive functionaries in matters of telephone tapping,
because there was no statutory provision in the field.
However, no directions were issued to the legislature.
33. In Som Mittal, the Supreme Court noted that the
High Court had on several occasions requested the State
Government to issue an ordinance to restore provisions
for anticipatory bail but the requests had fallen on deaf
ears. The Supreme Court, however, went on to observe
that there was no doubt that recommendation of the court
is not binding on the State Government. The Supreme
Court made similar recommendation but no direction was
given to the legislature. Deepak Bajaj merely reiterates
that the power of the High Court to issue writs is wider
than the English Court. It does not lay down the
proposition canvassed by the petitioner.
34. In Vishakha, the Supreme Court issued guidelines to
prevent sexual harassment at workplaces. The Supreme
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Court made it clear that what it was doing was in exercise
of its power under Article 32 for the enforcement of
fundamental rights. The Supreme Court made it further
clear that the guidelines issued by it would be treated as
the law declared by the Supreme Court under Article 141
and the guidelines were to be in operation until a
legislation is enacted for the purpose. It must be
remembered that
ig the Supreme Court issued the
guidelines because there was no law in the field. There
was a vacuum. In this case, there is no vacuum. MCOCA
is in the field. The petitioner may want certain
amendments to be made to MCOCA to make it an ideal
statute but for that no direction can be issued by us to the
legislature. We have already noted that our powers under
Article 226 are not comparable to the powers of the
Supreme Court under Articles 141 and 142 of the
Constitution. Vishakha is not applicable to the present
case.
35. Reliance placed on Tilve by the petitioner is
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misplaced. In that case, this court passed order in
invitum. The order was passed at the request of Election
Commission of India. Its suggestions were crystallized
into guidelines. The guidelines were only directed against
executive functionaries. In view of the above, it is not
possible for us to direct the State Government to amend
MCOCA to provide for a Review Committee or to direct it
to enact a new law for that purpose.
36. On the merits of the case, it is urged in the petition
that MCOCA has been applied mala fide and the facts and
circumstances do not make out a case for invoking the
provisions of MCOCA. It is submitted that there are no
previous charge-sheets filed against the petitioner. It is
submitted that there is no material to indicate that the
petitioner is a member of the gang headed by accused 1
Deepak Walekar or that he acted on behalf of the
organized crime syndicate of Deepak Walekar. Reliance is
placed on Bharat Gavhane to contend that apart from
stating that a gang leader and his associates run a crime
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syndicate with a view to gaining pecuniary benefits, there
must be some more material even at the prima facie
stage to justify application of MCOCA. Relying on
Gangwani it is submitted that filing of two charge-sheets
is not sufficient. That is only one of the ingredients of the
offence of organized crime. There has to be something
more than that. The activities must be indulged in for
pecuniary benefits. It is submitted that all the important
ingredients are absent in this case. It is submitted that
the sanction order indicates non-application of mind and,
hence, application of MCOCA to this case be set aside.
37. The sanction order is dated 20/6/2009. It is
annexed to the petition. Its perusal indicates that the
Investigating Officer had submitted papers of
investigation of C.R. No.42 of 2009 and C.R. No.55 of 2009
before the Commissioner of Police, Mumbai. The
Commissioner of Police, Mumbai has gone through the
said papers and the reports enclosed with the proposal
and issued the sanction order. The proposal order is
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dated 31/3/2009 and the sanction order is dated
20/6/2009. This time gap indicates that as stated in the
sanction order, the Commissioner of Police has gone
through the material placed before him.
38. It is stated in the sanction order that the arrested
accused are members of the gang headed by Deepak
Walekar and they indulge in unlawful activities for
pecuniary gain to themselves and others. It is stated that
more than one charge-sheet have been filed against the
organized crime syndicate headed by Deepak Walekar
and his associates. Prima facie, we are of the opinion that
sanction order is issued after proper application of mind.
In any case, if the petitioner wants to contend that there
is no application of mind, he can always raise that issue in
the trial court. The prosecution can then lead evidence to
prove to the contrary. Law in this regard is well settled.
We may only refer to Gokulchand Dwarkadas v. The
King, AIR 1948 Privy Counsel 82, where the Privy
Counsel has observed that the sanction for prosecution
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would be good if it was proved by evidence that it had
been granted after all the necessary facts had been
placed before the sanctioning authority though those facts
might not have been stated on the face of the sanction
itself. This view has been endorsed by the Supreme Court
in Feroz Din & Ors. v. State of West Bengal, AIR
1960 SC 363.
39. In State of Rajasthan v. Tarachand Jain, 1974
(3) SCC 72, the Supreme Court observed that the burden
of proof that the requisite sanction had been obtained
rests upon the prosecution. The burden includes proof
that sanctioning authority had given the sanction in
reference to the facts on which the proposed prosecution
was to be based. These facts might appear on the face of
the sanction or it might be proved by independent
evidence that sanction was accorded for prosecution after
those facts had been placed before the sanctioning
authority.
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40. On behalf of the State, affidavit is filed by Ashok
Duraphe, Assistant Commissioner of Police, D-1 (South),
D.C.B., C.I.D., Brihan Mumbai. From this affidavit, it
appears to be the case of the respondents that the
petitioner has nexus with the notorious Pandav Putra gang
headed by Deepak Walekar. It appears that he collects
money on behalf of the gang. He was caught red-handed
with part payment of extortion money of Rs.2 lakhs. This
organized crime syndicate has committed several
offences in the past ten years of which cognizance has
been taken by the court. This is, therefore, not a case
where we can quash the approval and the sanction order
in our jurisdiction under Article 226 of the Constitution of
India. We are unable to hold that MCOCA is invoked mala
fide. Judgments relied upon by the petitioner are of no
use to the petitioner at this stage. Needless to say that
they can be cited in the trial court at the appropriate time
if the petitioner so desires.
41. Judgments of the Supreme Court and of this court
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where the application of MCOCA has been held to be
improper and illegal have been cited before us as
illustrations of misuse of MCOCA. While it is argued that
in those cases, MCOCA was applied mala fide, it is
contended on behalf of the respondents that those are
cases where MCOCA was wrongly applied. We cannot
discuss the facts of the cases cited before us which have
been finally decided by the Supreme Court or this court. It
is possible that in some cases, the inability of the
investigating agency to understand the scope of MCOCA,
its inability to understand the meaning and sweep of the
terms of MCOCA may lead to its wrong application. But,
the possibility of its misuse despite the inbuilt provisions
of approval and sanction also cannot be ruled out. It
cannot be forgotten that in Kartar Singh, the Supreme
Court directed the State Government to constitute a
Review Committee to review cases where TADA was
applied, though provision for approval and sanction was
there in TADA.
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42. Affidavit filed by Mr. Prem Jain, Principal Secretary to
the Government of Maharashtra, Home Department
indicates that the State Government had appointed a
Committee under the Chairmanship of Justice C.S.
Dharmadhikari (Retd.) along with Mr. Satish Sahaney,
retired Director General of Police and Mr. D. Shivanandan,
Commissioner of Police, Nagpur, as its members to
consider various issues relating to MCOCA. The Chairman
of the Committee (Justice Dharmadhikari) recommended
the constitution of Review Committee however other two
members felt that there was no need of a Review
Committee. It is submitted before us that decision not to
have a Review Committee is consciously taken.
43. For the reasons which we have elaborated
hereinabove, we are of the confirmed opinion that we
cannot issue a direction to the State Government to
amend the law or to enact a law and provide for a Review
Committee. We, however, feel that if a provision for
Review Committee is made, the State will not be at a
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disadvantage. Constitution of a High Powered Review
Committee as recommended by the Supreme Court in
Shaheen Welfare Association will prevent a possible
wrong use or misuse of MCOCA. It will be a welcome step.
We may not however be understood to have directed the
State Government to enact a law providing for the Review
Committee, because whether such a law should be
enacted or not is a matter which lies entirely within the
legislative domain upon which we do not want to trench.
44. Before parting, we must note the scathing attack
made by Mr. Chitnis on the affidavits in reply filed in this
petition. Counsel drew our attention to the affidavit of Mr.
Duraphe, to which we have made a reference earlier.
Counsel submitted that very important and crucial
averments made in the petition have not been replied by
Mr. Duraphe and, therefore, adverse inference needs to
be drawn against the investigating agency. Counsel drew
our attention to order dated 9/11/2009 passed by the
Division Bench of this court presided over by Justice J.N.
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Patel wherein the Division Bench has expressed
displeasure about the manner in which Additional Public
Prosecutors, who are in charge of cases, are frequently
changed causing delay in disposal of cases and
inconvenience to the court and to the litigants. By the
said order costs of Rs.10,000/- have been imposed on the
State. The costs were directed either to be deposited in
the court or to be paid to the petitioner. A cheque dated
15/2/2010 for Rs.10,000/- has been deposited by the State
pursuant to this order with the Registrar (Judicial) of this
court.
45. We find substance in Mr. Chitnis’ submission. The
affidavits could have been drafted in a better manner.
Undoubtedly, some averments have not been dealt with.
This again appears to be the result of frequent transfer of
the brief from one prosecutor to the other. Lot of care
needs to be taken while preparing affidavits. However,
because the affidavit filed by the State is not upto the
mark, the application of MCOCA to the petitioner cannot
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be quashed. Prima facie, we are of the opinion that there
is justification for application of MCOCA and drawbacks in
the affidavit do not have any adverse impact on it. In the
peculiar circumstances of the case and considering the
observations of the Division Bench in its order dated
9/11/2009, we are of the opinion that costs of Rs.10,000/-
must be paid to the petitioner. Hence, the following
order :
46. The Registrar (Judicial-I) is directed to hand over
cheque dated 15/2/2010 for Rs.10,000/- issued by the
State of Maharashtra to the petitioner or his counsel
immediately. The petition is disposed of in the
aforestated terms.
[MRS. RANJANA DESAI, J.]
[MRS. MRIDULA BHATKAR, J.]
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