P.C. directing the Commissioner of Police, Mumbai, to form a Special Investigation Team hereinafter referred to as SIT to raid the premises of all the accused named in the companyplaint filed by the said Nitindra Singh, who were numbere other than the companyplainants against Nitindra Singh and witnesses of the trap case along with all police officers of the Anti Corruption Bureau, who had companyducted the raid in the trap case.
Soon thereafter, on 10th January, 2005, on an application filed by Nitindra Singh, the Special Judge, passed an order under Section 156 3 Cr.
Criminal Appeal No.1089 of 2006 has been filed by the State of Maharashtra, challenging the judgment of the Bombay High Court dated 22nd December, 2005, on the question as to whether the Special Court companyld take companynizance of an offence on a private companyplaint under Section 9 1 of MCOCA and order investigation in respect thereof under Section 156 3 of the Code of Criminal Procedure Cr.
Apart from the above, on 7th September, 2004, Ashok, son of Gyanchand Vohra, the appellant in Criminal Appeal No.1085 of 2006 and the proposed accused No.6 in the said private companyplaint, filed Criminal Writ Petition No.1801 of 2004 in the Bombay High Court for quashing the above mentioned orders passed by the MCOCA Court, Mumbai, along with the companyplaint itself.
Criminal Appeal No.1085/06 has been filed by Ashok, son of Gyanchand Vohra, against the judgment of the Bombay High Court in Criminal Writ Petition No.127 of 2005, which had been heard by a Bench of three Judges on a reference being made to resolve two companyflicting views which had been taken by two Division Benches of the Bombay High Court relating to the interpretation of Section 9 1 vis vis Section 23 of the Maharashtra Control of Organized Crime Act, 1999 hereinafter referred to as MCOCA .
On 2nd September, 2004, acting on the instructions of the State of Maharashtra, Smt.
However, on the very next date, on 22nd December, 2004, another Division Bench of the Bombay High Court, while companysidering the Writ Petition filed by Smt.
On 22nd December, 2005, the Full Bench of the High Court gave a split verdict with the majority view being that a private companyplaint filed under Section 9 of MCOCA was independent of Section 23 and companypliance with the provisions of Section 23 was number a pre condition for the learned Special Judge to take companynizance of an offence under MCOCA.
Meera Borvankar Criminal Writ Petition No.1772 of 2004 , quashed the three orders passed by the learned Special Judge on 24th August, 2004, 26th August, 2004 and 30th August, 2004, on the private companyplaint filed by Nitindra Singh, but held that while entertaining a private companyplaint under Section 9 of MCOCA, the Special Court companyld take recourse to the provisions of Section 156 3 Cr.
No.5677 of 2007 has been filed by Jamiruddin Ansari, challenging the order passed by the Bombay High Court on 16th April, 2007, rejecting his prayer for bail, although, he is in custody since his arrest on 10th October, 2004, without trial.
Pursuant to his arrest, an offence was registered by the Anti Corruption Bureau, Mumbai, under Sections 7, 8, 9, 12, 13 1 d and 13 2 of the Prevention of Corruption Act, 1988, being C.R. No.3071 of 2003, against the said Nitindra Singh and several others.
In order to understand the companytext in which these questions have arisen, it is necessary to briefly set out the facts of the case.
It was alleged that the said Himmat Nanda was, in fact, the companyduit for the said respondent, Nitindra Singh.
On 21st December, 2004 in another case, a Division Bench of the Bombay High Court held that a private companyplaint under Section 9 of MCOCA companyld number be entertained without companypliance with Section 23 of the said Act.
Meera Borvankar filed Criminal Writ Petition No.1772 of 2004 before the Bombay High Court on behalf of the State Government, praying for quashing of the order dated 24th August, 2004, passed by the learned Special Judge ordering the formation of a SIT to raid the premises of all the accused named in the companyplaint the order dated 26th August, 2004, directing urgent investigation and the order dated 30th August, 2004, appointing the writ petitioner to head the SIT.
P.C. and order investigation of such private companyplaint.
Of the four appeals indicated hereinbefore, Criminal Appeal No.1089 of 2006 filed by the State of Maharashtra was taken up first for companysideration.
On 30th August, 2004, the Special Judge, MCOCA Court, appointed Smt.
Criminal Appeal No.1088 of 2006 has been filed by one Shabbir Noormohamed Patel, raising the same questions as those raised in Criminal Appeal No.1085/06.
The matter was sent back to the Special Judge with the aforesaid finding.
In her Writ Petition, Smt.
Meera Borvankar categorically stated that numbere of the accused in the private companyplaint filed by Nitindra Singh was a member of any criminal gang and that the said companyplaint filed by Nitindra Singh was false, frivolous and liable to be quashed.
After recording the statements of six witnesses on 21st August, 2004, the learned Special Judge passed an order under Section 202 Cr.
A similar writ petition, being Criminal Writ Petition No.1802 of 2004, was filed by Sandeep Singh, the proposed accused No.2 in the private companyplaint and the companyplainant in the trap case, praying for the self same reliefs as prayed for by Ashok, son of Gyanchand Vohra.
It is against the said judgment and order of the Full Bench that these appeals have been filed.
When the same was taken up for companysideration on 23rd March, 2005, the learned Single Judge, numbericed the divergence of opinion in the judgments delivered by the two Division Benches and referred the issue for decision to a larger Bench.
On 5th September, 2003, one Himmat Nanda was alleged to have been caught red handed accepting a bribe of Rs.3 lakhs, for and on behalf of one Nitindra Singh, in a trap set up by the Anti Corruption Bureau, Mumbai.
SLP Crl.
No.5677 of 2007, inasmuch as, they arise out of the same set of facts and companymon questions of law are involved.
The said order was challenged by Ashok, son of Gyanchand Vohra, in Criminal Writ Petition No.127 of 2005.
On 19th August, 2004, Nitindra Singh, who was an Assistant Police Inspector, filed a private companyplaint, being Special Case No.243 of 2004, under the penal sections of MCOCA before the Special Judge, MCOCA Court, Mumbai, against 14 accused, 8 of whom were senior police and government officials and members of the Anti Corruption Bureau and some other government officials who were members of the raiding party in the above mentioned trap case.
The learned Special Judge was directed to companysider afresh the private companyplaint filed by Nitindra Singh.
P.C. and ordered the Commissioner of Police, Mumbai, to investigate into the companyplaint filed by Nitindra Singh.
P.C. The companymon thread running through these appeals is the question as to whether an investigation companyld be ordered by the Special Court companystituted under MCOCA, save and except in accordance with Section 23 1 of MCOCA, and interplay, if any, between Section 9 1 and Section 23 of MCOCA.
Meera Borvankar, Joint Commissioner of Police Crime , Mumbai, to head the SIT.
