DAYANAND B NAYAK Vs. KETAN K TIRODKAR

JUDGEMENT

(1.) THIS petition filed under Article 226 of the Constitution prays for an appropriate writ, order or direction in the nature of a writ for quashing and setting aside the proceedings initiated by the first resondent and registered as Misc. Application No. 255 of 2003 before the Designated Court at Mumbai under the Maharashtra Control of Organised Crime Act, 1999 (for short MCOCA ). The petitioner is presently working as Police Sub-Inspector attached to the Crime Investigation Unit of Crime Branch, Andheri of Mumbai Police. Whereas the first respondent claims to be a journalist and associated with the petitioner in the alleged organised crime under MCOCA as has been set out in the complaint dated 6th October, 2003 addressed to Shri Shankar Kamble, Assistant Commissioner of Police. Crime Branch, Mumbai with copies to different authorities, overseas as well as within the country.

(2.) ON submission of the said complaint dated 6th October, 2003, the first respondent (hereinafter referred to as "the complainant") approached this Court on or about 16th October, 2003 by moving Criminal Writ Petition No. 1573 of 2003 and prayed (a) to direct the Additional Commissioner of Police, Crime Branch, Mumbai to grant approval of recording of information about the commission of offence of organised crime MCOCA : (b) to direct Asstt. Commissioner of Police to effectively investigate into the complaint dated 6th October, 2003 lodged by the petitioner as contemplated under Section 23 (b) of MCOC Act and to file a report to this Court. By way of interim relief, pending the petition, he had prayed for a direction against the Commissioner of Police, Greater Mumbai to provide for police protection to him. By interim order dated 17th October, 2003, a Division Bench of this Court directed the Commissioner of Police, Mumbai to provide police protection. Affidavit in reply came to filed by Shri Shankar Kamble, Asstt. Commissioner of Police, Crime Branch (referred to as ACP) on or about 18th October, 2003 and additional affidavit was filed by the same officer on 3rd November, 2003 in the said petition. In the first petition, it was stated by the affient that on 15th October, 2003 while going through the copy of the petition memo, served in advance, he came across the complaint letter dated 6th October, 2003 and on that day he initiated enquiries with respect to the contents of the same and, therefore, enquiry was in progress. Whereas in the additional affidavit the very same officer stated that the complaint letter dated 6th October, 2003 was received by him from the office of the Commissioner of Police, Mumbai on 24th October, 2003 with a directon to make enquiry into the matter and to submit the report immediately. He further stated that thereafter he had recorded the statement of 6 persons to verify the authenticity of the complaint, and as wild allegations were levelled against politicians, bureacrats and I. P. S. Police Officers, a detailed secret enquiry was carried out by him which, at the relevant time, was at crucial stage. This Court taking note of the said statement regarding enquiry being in progress and of the statement made by the learned Prosecutor that police protection as provided to the complainant would be continued, disposed of the petition by order dated 4th November, 2003. 3. It appears that on or about 12th November, 2003, trhe complainant approached the Designated Court at Mumbai constituted under the MCOCA and filed Misc. Application No. 255 of 2003. On 13th November, 2003, the learned Special Judge, after noticing the provisions of Sections 9 (1) and 23 of MCOCA held that the complaint by a citizen can be entertained by the Special Court in respect of the fact which may constitute offence punishable under the said Act along with the offences punishable under I. P. C. and other penal statutes and that being so Misc.

(3.) APPLICATION was directed to be registered as Special Case No. 4 of 2003 under MCOCA. On the next day, the verification of the complainant was recorded under Section 200 of the Code of Criminal Procedure (the Code for short ). The learned Judge did not think it appropriate to proceed further by invoking the power under Section 204 of the Code and by postponing the same he proceeded to record evidence of some witnesses, a list of which was provided by the complainant. One Shri Tejpal Singh was examined on oath on 20th November, 2003 and Shri Mahesh Sanappa Gowda was examined on 3rd December, 2003. However, in the meanwhile, the learned Special Judge passed an order on 20th November, 2003 and issued search warrant directing the ACP to take search of the house as well as office of the accused named in the complaint i. e. accused Nos. 1 to 3 and search was conducted subsequently, a report of which has been submitted before the Special Court by the Officer so appointed. It is at this stage that the present petitioner became aware of the complaint filed by the complainant and being aggrieved by the orders of the Special Court entertaining a private complaint, this petition came to be moved under Article 226 of the Constitution of India.