TARIQ ABDUL KARIM PARVEEN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The above writ petitions were heard by us and the judgment was reserved. Then I prepared the judgment of the Bench in November, 2005 and circulated it to my learned colleagues on the Bench. However to my dismay, i was informed by both my colleagues that they do not agree with the view taken by me on the presumption that they agree with me. I then read the majority view rendered by Hon'ble Shri Justice D. B. Bhosale. Having given my anxious consideration to the views expressed I found it impossible to agree with the majority view. Hence this opinion.

(2.) I regret my incapacity to convince my learned colleagues to the view that I propagated. In my humble opinion, the majority view has the result of virtually destroying the safeguards provided under the MCOC Act. The majority view reads several things into the Act which are not legislated. It has the effect of permitting the Special Court under the Act not only to take cognizance of private complaint alleging commission of offences under the MCOC Act and order investigation under section 156 (3) of Criminal Procedure Code when section 23 of the MCOC Act specifically bars it.

(3.) Special Court is not a Court of Sessions as defined by the Code. Section 156 specifically contemplates Magistrate empowered under section 190 of the Code. Section 190 of the Code speaks only of magistrate. What Magistrate means is defined by the code and Special Court 'as defined by sections 5 and 6 certainly is not a Magistrate. But for the provisions of sections 5 and 6 of the MCOC Act the Special Court contemplated by the Act does not come into existence. It is not in the hierarchy of Courts mentioned in the criminal Procedure Code. It is not a Court of magistrate. It is not Court of Sessions. Section 156 specifically contemplates Magistrate as defined by criminal Procedure Code. The majority view has in effect held that Special Court constituted under sections 5 and 6 of the MCOC Act is a Magistrate as defined by Criminal Procedure Code for the purposes of exercising powers under section 156. Such construction is impermissible under any established principle of statutory interpretation.