The Bombay High Court has directed the Principal Secretary, Law and Judiciary to issue appropriate instructions to the Special Public Prosecutor in the matter of conducting trials under the provisions of POCSO Act, particularly having regard to the procedure to be adopted while recording the evidence in case of availability of statement of the victim under Section 164 of Cr.P.C.

The Aurangabad Bench of Justice Nitin W. Sambre and Justice S. G. Chapalgaonkar heard Paranjape Prakash S , counsel for the petitioner who has apprised the Court about the issue involved in the present PIL. According to him, the PIL to a larger stage has served its purpose as already the accused persons were traced pursuant to the complaint of victim and were prosecuted under the provisions of POCSO Act.

According to the Counsel , in spite of there being the statement of the victim recorded under Section 164 of Cr.P.C., the fact remains that the judicial authority who has recorded such statement was not examined which has resulted into the recording of acquittal of the accused persons.

As such, he urged that the general direction needs to be issued to the Special Courts taking up POCSO matters, so also the Special Public Prosecutors who are conducting POCSO trials to be sensitive in the matter of examining witnesses particularly in case of availability of the statement of victim under Section 164 of Cr.P.C.

The Additional Public Prosecutor Yawalkar submits that even if there is an acquittal, the PIL has sensitized the administration resulting into filing of an appeal and the appeal against the acquittal is being persuaded by the State seriously.

Having regard to the aforesaid submissions and having satisfied that the present PIL has served its purpose, the High Court deemed it appropriate to dispose of the same.

“However, considering the submissions made by Mr. Paranjape in the matter, we feel it appropriate to bring the copy of the order passed in the present PIL to the notice of the Principal Secretary, Law and Judiciary, so as to facilitate him to issue appropriate instructions to the Special Public Prosecutor in the matter of conducting the trials under the provisions of POCSO Act, particularly having regard to the procedure to be adopted while recording the evidence in case of availability of statement of the victim under Section 164 of Cr. P.C. We deem it appropriate to direct the Principal Secretary, Law and Judiciary to issue appropriate instructions in the matter, if no such instructions are already governing the issue”, the order reads.

The Bombay High Court said that it cannot substitute its opinion to the requirement under Section 23(1)(a) of the Maharashtra Control of Organized Crime Act, 1999 (MCOCA) so as to issue positive directions to the respondent police authorities to initiate prosecution against accused persons under the Act.

The Aurangabad Bench of Justice Nitin W. Sambre and Justice S.G. Chapalgaonkar disposed of a Criminal Public Interest Litigation filed with the following prayers:-

B) By issuing an appropriate writ, order or direction, direct the respondents to take effective preventive action against Anda gang operating in Ahmednagar city and to apply provisions of MCOCA 1999 against the said gang and for that purpose issue necessary orders.  

C) By issuing an appropriate writ, order or direction, direct the respondents to establish a police station / chowki in Mukundnagar area of Ahmednagar city and for that purpose issue necessary orders.  

D) Pending hearing and final disposal of this Criminal Public Interest Litigation, direct the respondents to take decision on the representations of the petitioner and for that purpose issue necessary orders. 

E) Pending hearing and final disposal of this Criminal Public Interest Litigation, direct the respondents to extend police protection to the petitioner and for that purpose issue necessary orders.   

The petitioner, a registered public trust, claims to be keen on having violence free atmosphere in the area of its operation.

According to the petitioner/trust, the accused persons who are named in prayer clause B are continuously indulging in unlawful activities. Against the members of the alleged Anda Gang, a number of offences were registered and the accused persons were prosecuted.  

Senior Counsel V.D. Sapkal appearing for the petitioner submitted that as the said accused persons are continuing unlawful activities which have been committed in the capacity of members of organized crime syndicate, the available material viz the number of charge sheets contemplate invoking stringent MCOCA provisions. So as to substantiate his contention, Sapkal would invite attention of this Court to Section 2 of the MCOCA Act, particularly sub section 2(1) (d), 2(1)(e) and 2(1)(f), which defines continuing unlawful activity, organized crime and organized crime syndicate.

According to him, the statutory authority under the Bombay Police Act before whom the petitioner has already lodged its complaint has looked into the same and has recorded a finding of default of the police officials. However, it refrained itself from ordering invoking of aforesaid provisions for want of authority. Based on the above, he urged that the prayer clause B be granted thereby issuing directions to the police authorities to invoke provisions of the MCOCA Act.  

The Counsel for the respondents including APP and the counsel for the intervenor submit that the prayer of the petitioner cannot be granted by issuing positive directions as the scheme of the aforesaid Act needs to be appreciated.  

The provision of Section 23 of the MCOCA Act reads as under : 

The Maharashtra Control of Organized Crime Act, 19991. ……..2. ……..23. Cognizance of, and investigation into, an offence (1) Notwithstanding anything contained in the Code,—(a) no information about the commission of anoffence of organised crime under this Act, shall berecorded by a police officer without the prior approval ofthe police officer not below the rank of the Deputy Inspector General of Police;(b) no investigation of an offence under the provisions of this Act shall be carried out by a police officer below the rank of the Deputy Superintendent of Police.(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.

The said provision expressly provides for cognizance and investigation into an offence under the aforesaid act. For the benefit, the said provision is reproduced above.  

The provisions of Section 23 opens with a non-obstante clause. Clause (a) of Sub section (1) of Section 23 of the Act puts an embargo on the powers of the police officer of recording information about commission of an offence of organized crime defined under Section 2(1)(e) of the MCOCA Act without prior approval of the police officer not below the rank of Deputy Inspector General of Police.

Clause (b) of Sub Section (1) of Section 23 of the Act further provides that investigation in the offence under the provisions of the MCOCA Act cannot be carried out by a police officer below the rank of the Deputy Superintendent of Police.  

As such what is required to be appreciated is the scheme of the Act particularly under Sub Section (1)(a) of Section 23 of the Act puts an embargo on the rights of the police officer of recording information of the commission of organized crime without prior approval of the police officer not below the rank of the Deputy Inspector General of Police.

The word approval used in the said sub section contemplates and means the said authority i. e. an officer not below the rank of Deputy Inspector General of Police who shall apply mind to the information available so as to have subjective satisfaction about commission of an offence of organized crime.

As such what can be noted by the Court cannot substitute its opinion to that of the opinion of a police officer not below the rank of Deputy Inspector General of Police in the matter of recording of the information about the commission of an offence of organized crime under MCOCA.  

Sub-Section 2 of Section 23 of the Act puts an embargo on the powers of the Special Court in taking cognizance of an offence under MCOCA without previous sanction of the police officer not below the rank of an Additional Director General of Police.  

The Bench noted that the scrutiny of the information in the matter of an offence under MCOCA even at the stage of recording of information and another before taking cognizance, the sanction was required from the Additional Director General of Police.  

Admittedly in the case in hand the approval of the police officer not below the rank of Deputy Inspector General of Police neither noticed, nor such steps been taken on behalf of the respondent police are brought to the notice of this Court, the Court held.

The provisions of the MCOCA can be made applicable provided that the accused is found to be related and involved in the offence which satisfies five ingredients mentioned below :  

(i) that there has to be continuing unlawful activity/ies;(ii) that such an activity will have to be by an individual, singly or jointly;(iii) that such an activity is either by a member of an organized crime syndicate or on behalf of such syndicate:(iv) that there has to be use of violence or threat of violence or intimidation or coercion or other unlawful means:(v) that such an activity has to be with an objective of gaining pecuniary benefits or gaining undue economic or other advantage for the person who undertakes such an activity or any other person or promoting insurgency”.

The aforesaid proposition can be drawn support from the judgment of this Court in the matter of the State of Maharashtra Vs. Jagan Gangasingh Nepali and others reported in MANU/MH/1155/2011.  

However, the High Court considered the case of the petitioner in the backdrop of provisions of Section 9 of the Act, which prescribes for procedure and powers of the Special Court. The Special Court is empowered to take cognizance of any offence without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence or upon a police report of such facts. In case if a complaint of fact constituting an offence under the MCOCA is brought to the notice of the Special Court, it is essential for the Special Court to refer to the same to the authorities mentioned in Section 23 of the MCOCA referred to  above. 

In the opinion of the High Court, such recourse is very much available to the petitioner and if so desired it is open for it to take recourse to such remedial measure in regard to provisions of Section 23 of the MCOCA.

Apart from above, the Bench was  informed that a police chowki has already been made functional. We expect from the respondent – Superintendent of Police, Ahmednagar to ensure regular posting of the police personnel at the said chowki as the grievance made by the petitioner is that even if the police chowki at Mukundnagar area is open, however, the same is not made operational for want of staff.  

Keeping such remedy open to the petitioner, the High Court observed that in case if the steps are taken by the petitioner accordingly, the Special Court shall deal with the prayer of the petitioner in accordance with the scheme of the Statute and more particularly provisions of Sections 9 and 23 of the MCOCA Act.  

As far as the prayer clause–E is concerned, the same is in regard to the police protection. It shall be always open to the petitioner to approach the police authorities, who can deal with such issue in accordance with the Rules, the Court ordered.