ANIL SADASHIV NANDUSKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This appeal arises from order dated 23rd April 2007 passed by the learned Special Judge under the Maharashtra control of Organised Crime Act 1999 (hereinafter referred to as the MCOC Act ). By the impugned order, the learned Special Judge Pune in Special Case No. 2 of 2005 has dismissed various applications, including the application raising objection for framing of charge on the ground of invalid approval under section 23 (l) (a) and invalid sanction under section 23 (2) of the MCOC Act. It was the case of the appellant that the approval and the sanction issued under the said provision of law were invalid as they were issued without application of mind.

(2.) The appellant is the accused No. 1 in Special Case No. 2 of 2005 before the Special Judge Pune and he is facing trial on accusation of commission of offence punishable under section 3 (l) (i) and 3 (2) of MCOC Act. An application was sought to be moved for discharge of the appellant/accused on various grounds, which came to be dismissed by the impugned order dated 23rd April 2007. The said order is sought to be challenged on two grounds. Firstly that the special Judge failed to take note of the fact that the approval which was sought to be granted under section 23 (l) (a) of the MCOC Act was without application of mind, and therefore, bad in law and the fact that it is without application of mind is apparent on the face of record inasmuch as that though the appellant was sought to be prosecuted for commission of the offence of organized crime, the letter of approval does not disclose that the concerned authority had taken into consideration whether the materials placed before it disclose the factum of commission of alleged offence of organized crime by the appellant so as to enable the investigating agency to commence investigation under the MCOC act. Secondly, that the Special Judge failed to take note of the fact that the appellant was sought to be prosecuted without valid sanction which is pre-requisite for initiating prosecution against the accused under MCOC Act, and also that the sanction in question was granted without application of mind inasmuch as that it does not ex-facie disclose that the concerned authority had considered as to whether the appellant was member of the alleged syndicate involved in commission of an offence with the object of pecuniary gain or economic benefits.

(3.) The learned PP on the other hand drawing our attention to the decision in Kalpanath Rai vs. State (through CBI), 1997 8 SCC 732 and referring to the decision of this Court in Cri. Writ Petition Nos. 988 of 2006, 989 of 2006, 1043 of 2006, 1840 of 2006, delivered on 10th November 2006, submitted that the order of approval and that of the sanction being merely to initiate the proceedings and as both the orders in the case in hand ex-facie disclose that all the relevant materials were produced before the concerned authorities before the grant of approval and sanction, no fault can be found with the impugned order dismissing the application for discharge. He further submitted that the law on the point as to whether the accused is required to be heard or not prior to grant of approval or sanction is well settled and the law in that regard is that no such hearing is required to be granted to the accused. He further submitted that mere grant of approval or sanction cannot be said to be affecting the rights of the accused. He also submitted that in any case, even assuming that there is any deficiency in the letter of approval or sanction, the same can be explained by leading evidence by the prosecution and being so, even assuming that there is some omission of some words in the sanction or approval order, that could be no justification for discharge of the accused without affording opportunity to the prosecution to establish the validity of the approval or sanction by leading necessary evidence in the course of trial. He further submitted that reading of the approval as well as sanction in question nowhere discloses any such irregularity, and even ex-facie both the orders are valid and lawful and therefore, there is no substance in the grievance sought to be made on behalf of the appellant.