AVINASH TUKARAM SANAS Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard Counsel for the parties.

(2.) This Writ Petition is filed by the original complainant. 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.

(3.) 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., 2009 6 SCC 316. 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 Subsection 1 of Section 23, which starts with a non obstante clause. Section 23 of the said Act reads thus :