Vishal Sharma @ Rinku v. State

1 Exemption is allowed subject to all just exceptions.

2 Application disposed off. CRL.REV.P. 198/2014 & Crl. M.A. No.5301/2014 3 This revision petition has been filed against the order dated 18.02.2014 wherein charges had been framed under Sections 392/411/34 of the IPC as also under Section 3 (1) (ii), 3 (2), 3 (4) and 3 (5) of the Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred to as the ‘said Act’). The petitioner is aggrieved by the aforenoted order. 2014:DHC:1787

4 Attention has been drawn to an order passed by this Court on 13.01.2014; submission being that the matter had been remanded back to the trial Judge by this Court and the fresh order had been passed by the Sessions Judge without keeping in mind the law which has been laid down under Section 23 (2) of the said Act. Submission of the learned counsel for the petitioner being that the Special Court cannot take cognizance of any offence under the said Act without the previous sanction of the Additional Director General of Police. It is pointed out that admittedly in this case cognizance had been taken on 04.07.2011 on a challan which had been filed on 02.07.2011 which had not been accompanied by the sanction which is a mandatory requirement under Section 23 (2) of the said Act. It is pointed out that the supplementary challan filed only on 19.11.2011 contained the sanction but the first order dated 04.07.2011 taking cognizance without the sanction suffers from a vice which could not have been cured by filing of the supplementary charge-sheet which legal position has not been properly appreciated by the trial Judge.

5 Section 23 (2) of the said Act reads herein as under:- “23. Cognizance of, and investigation into, an offence:- (1) Notwithstanding anything contained in the Code:- (a) xxxxxxxxxxxxxx (b) xxxxxxxxxxxxxx (2) No Special Court shall take cognizance of any offence under this Act without the previous sanction of the police officer not below the rank of Additional Director General of Police” 6 These submissions have been refuted by the learned APP for the State. It is pointed out that a sanction which has not accompanied the original charge-sheet can well be filed by way of a supplementary charge-sheet and this defect can be cured at the later stage. Reliance has been placed upon a judgment of a Bench of this Court reported as 2002 (61) DRJ 553 Romesh Sharma Vs. State.

7 This submission of the learned public prosecutor is the correct legal position. There is no doubt that section 23 (2) of the said Act is contained in a mandatory language and cognizance of any offence under the said Act without previous sanction cannot be taken. However, there is no prohibition in law for filing a supplementary charge-sheet after obtaining sanction in accordance with law. This has been noted by a Bench of this Court in Romesh Sharma (supra). This was a case under Section 25 of the Arms Act which mandates a previous sanction under Section 39 of the said Act which is also a mandatory provision and a special law. In the case of Romesh Sharma (supra), the charge-sheet had been filed without the requisite sanction under Section 39 of the said Act. However, after the sanction had been obtained, a supplementary charge-sheet had been filed and cognizance was taken; it had been noted that the first order of cognizance without the sanction was a nullity but after filing of the supplementary charge-sheet which contained the mandatory sanction, the earlier defect got cured. The impugned order has recited the correct legal position after discussing the law including the judgment of Romesh Sharma (supra).

8 This petition is nothing but an abuse of the process of the Court. Dismissed with costs quantified at Rs.10,000/-. INDERMEET KAUR, J MARCH 31, 2014 A