Holding

Non‑inclusion of an accused’s name in the approval under s.23(1)(a) of MCOCA does not invalidate the investigation or the later sanction under s.23(2) once complicity is established during investigation.

Summary

Vinod G. Asrani and three others filed writ petitions challenging their prosecution under the Maharashtra Control of Organized Crime Act, 1999 (MCOCA), arguing that no approval under s.23(1)(a) was obtained for investigating Asrani and that the subsequent sanction under s.23(2) was therefore invalid. The High Court examined only whether the prosecution complied with s.23(1) and s.23(2) and dismissed the petitions, holding that non‑inclusion of the accused’s name in the approval did not vitiate the investigation because his complicity was later established and he was included in the sanction. The Supreme Court affirmed the High Court’s view, noting that the investigative process under MCOCA mirrors that under the Code of Criminal Procedure, where names may emerge during investigation, and that the accused will have a full opportunity to contest the charges before the Special Court. Consequently, the Special Leave Petition was dismissed and the interim bail previously granted to Asrani was cancelled, directing him to surrender before the Special Court.

Issues considered

Whether the failure to include the accused’s name in the approval under s.23(1)(a) of MCOCA invalidates the investigation.
Whether such failure also invalidates the subsequent sanction under s.23(2) of MCOCA.
Whether the prosecution complied with the procedural requirements of s.23(1) and s.23(2) of MCOCA.
Whether the interim bail granted to the petitioner should be cancelled.

Legislation cited

Code of Criminal Procedure, 1973s. 154
Maharashtra Control of Organized Crime Act, 1999s. 23(1)(a), s. 23(2)

Subjects

MCOCAinvestigation approvalsanctionorganized crimeFIRbail cancellationprocedural compliance

Judgment

~-+ VINOD G. ASRANI A
v.
STATE OF MAHARASHTRA

FEBRUARY 21, 2007

[DR. AR. LAKSHMANAN AND AL TAMAS KABIR, JJ.] B

-.. ~ Maharashtra Control of Organized Crime Act, 1999:

ss.23(1) and (2)-Prosecution-Non inclusion of name of accused in
the approval granted under s.23(J){a)-Ejfect-Held, is of no consequence c
since during investigation his complicity was established and thereafter
sanction was obtained to prosecute him along with the others under s.23(2}-
Allegation against him were sufficient to charge sheet him under the provisions
of the Act alongwith other accused as being part of an organised crime
syndicate-Code of Criminal Procedure, I 973-s. I 54. D
By way of writ petitions before the High Court, petitioner and three
others had challenged their prosecution under the Maharashtra Control of
Organised Crime Act, 1999 (MCOCA) and sought quashing of the FIR and
the grant of approval under s.23(l)(a) and sanction under s.23(2) of the Act.
High Court confined itself only to the question as to whether the prosecution E
had complied with the provisions ofss. 23 (1) and (2) of the Act.

In Special Leave Petition to this Court, petitioner contended that no
approval had been obtained to commence the investigation against the
~
petitioner under s.23 (1) (a) of the Act and consequently the Investigating
Officer did not have the authority to commence investigation into the offences F
alleged to have been committed by the petitioner; and that if the very initiation
of the investigation stood vitiated by the failure to obtain approval under s.23
(1) (a), the subsequent sanction granted under s.23 (2) also stood vitiated and
the proceedings before the Special Court on the basis thereof were liable to
be quashed.
G
Dismissing the Special Leave Petition, the Court
-:'

HELD: 1.1. The High Court did not commit any error in dismissing the

1023 H
1024 SUPREME COURT REPORTS [2007] 2 S.C.R.

A petitioner's writ application. [Para 8) [1028-B]
+-
1.2. Non-inclusion of the petitioner's name in the approval under
s.23(1)(a) ofMCOCA was not fatal to the investigation as far as the petitioner
is concerned. On the other hand, his name was included in the sanction
granted under s.23(2) after the stage of investigation into the complaint where
B his complicity was established. The offences alleged to have been committed
by the petitioner has a direct bearing and/or link with the activities of the
other accused as part of the Chhota Rajan gang which was an organized crime
syndicate. [Para 8) [1028-C)

2. The scheme of the Cr.P.C. makes it clear that once the information
C of the commission of an offence is received under s.154 Cr.P.C., the
investigating authorities take up the investigation and file charge sheet against
whoever, is found during the investigation to have been involved in the
commission of such offence. There is no hard and fast rule that the First
Information Report must always contain the names of all persons who were
D involved in the commission of an offence. Very often the names of the culprits
are not even mentioned in the F.I.R. and they surface only at the stage of the
investigation. The scheme under s.23 of MCOCA is similar and s.23 (l)(a)
provides a safeguard that no investigation into an offence under MCOCA should
be commenced without the approval of the concerned authorities. Once such
approval is obtained, an investigation is commenced. Those who are
E subsequently found to be involved in the commission of the organized crime
can be proceeded against once sanction is obtained against them under s. 23
(2) of MCOCA. [Para 9) (1028-E-G)

Kari Choudhary v. Mst. Sita Devi & Ors., [2002) 1 SCC 714, relied on.
F 3. By way of an interim order dated 15th December, 2006, the petitioner
had been granted interim bail which was extended from time to time. In view
of this judgment, the petitioner's bail stands cancelled and he is directed to
surrender forthwith before the Special Court. [Para 12] [1029-B]

G CRIMINAL APPELLATE JURISDICTION : Special Leave Petition (Crl)
No.6312 of2006.

From the final Judgment and Order dated 10.11.2006 of the High Court
of Judicature at Bombay in CRL WP No. 1043/2006.

H
VINODG.ASRANlv. STATEOFMAHARASIITRA [ALTAMASKABIR, l] 1025
Sushi! Kumar,' Kaushik Jayant, Vinay Arora, Aditya Kumar, Anmol A
~·~ Thakral and Sanjay Jain for the Appellant.

Altaf Ahmed, Ravindra Keshavrao Adsure,, Sushil Karanjkar and Gautam
Godara for the Respondent.

The Judgment of the Court was delivered by B
ALTAMAS KABIR, J. I. Four writ petitions, in which the petitioners
had challenged their prosecution under the Maharashtra Control of Organized
Crime Act, 1999 (hereinafter referred to as 'the MCOCA ') and seeking quashing
of the First Information Report and the grant of approval under Section 23
(I) (a) and sanction under Section 23 (2) of MCOCA, were disposed of by C
a common order passed by the Bombay High Court on 10th November, 2006.
The writ petitioners had contended that no case had been made out against
them regarding their complicity in the organized criminal activity or organized
crimes alleged to have been committed by the organized crime syndicate
known as Chhota Rajan gang under the leadership of Rajan Sadashiv Nikalje D
alias Chhota Rajan alias Nana alias Sheth. All the said writ petitions were
dismissed by the said order but only Vinod G. Asrani is before us in this
special leave petition. While the other writ petitioners as part of the organized
crime syndicate led by Chhota Rajan are alleged to have indulged in extortion
of large sums of money from developers who undertake redevelopment work
of old buildings in Tilak Nagar and other areas of Bombay, by extending E
threats of violence including murder, the petitioner herein is alleged to have
been found working for the organized crime syndicate and had facilitated the
appropriation of funds extorted from builders in Tilak Nagar area, Chem bur,
Mumbai, at the behest of Pradip Madgaonkar @ Bandya Mama, which have
been siphoned of in the accounts of the family members of Chhota Rajan and F
Mis. Khusi Developers Private Limited and others. It was further alleged that
the petitioner had acted as an intermediary and had played an active role in
the conspiracy and had also invested and/or diverted huge amounts which
had been collected by way of extortion. The further allegation against the
petitioner is that he had helped one of the other writ petitioners, namely,
Sujata Rajendra Nikalje @ Nani to launder large amounts of money and acted G
as a money changer by manipulating accounts so that the fruits of the
organize<l crime could be enjoyed by members of the organized crime syndicate
and their leader Chhota Rajan and his family members.

2. While disposing of the writ applications, the High Court made it clear
H
1026 SUPREME COURT REPORTS [2007] 2 S.C.R.

A at the very outset that it was not going into the question as to whether the
material collected by the investigating agency against the petitioners was
sufficient to prosecute them under the provisions of the MCOCA and that
the writ petitioners, who were the accused in the case, would have sufficient
opportunity to contest the same before the Special Court. The High Court
confined itself only to the question as to whether the prosecution had complied
B with the provisions of Section 23 (!) and (2) of MCOCA. Although, it was
brought to the notice of the High Court that the name of the petitioner herein
was not included in the approval granted under Section 23 (I) (a) ofMCOCA
and that his name was subsequently included in the sanction granted by the
Commissioner of Police under Section 23 (2) ofMCOCA, the High Court did
C not accept the petitioner's contention that as no prior approval had been
granted as far as the petitioner was concerned, the Investigating Officer could
not hav~ proposed to charge sheet the petitioner. The High Court also
rejected the petitioner's contention that the sanction granted by the
Commissioner of Police on the basis of the said proposal was illegal and not
in accordance with the procedure established by law. The High Court
D accordingly dismissed the writ application filed by the petitioner herein along
with the writ applications filed by the others.

3. Appearing for the petitioner, Mr. Sushi! Kumar, learned senior counsel,
reiterated the submissions made before the High Court. He emphasized the
E fact no approval had been obtained to commence the investigation against
the petitioner under Section 23 (I) (a) of MCOCA and consequently the
Investigating Officer did not have the authority to commence investigation
under MCOCA into the offences alleged to have been committed by the
petitioner. He urged that if the very initiation of the investigation stood
vitiated by the failure to obtain approval under Section 23 (I) (a), the
F subsequent sanction granted under Section 23 (2) also stood vitiated and the
proceedings before the Special Court on the basis thereof were liable to be
quashed.

4. Apart: from the above, Mr. Kumar urged that there was hardly any
justification to involve or to implicate the petitioner under the provisions of
G the MCOCA. It was urged that there was no material on record to connect
the petitioner with the commission of the offences relating to extortion as
complained of against the other accused. The only allegation against the
petitioner is that he had acted as an intermediary in investing anc!-'or diverting
huge amounts 'which had been collected by the crime syndicate and had
H
,_
VINODG. ASRANI ~·STA TEOF MAHARASHTRA [ALTAMAS KABIR, J.] 1027

~· helped the accused No.4 Sujata Rajendra Nikalje to launder large sums of A
money and had also acted as money changer by manipulating accounts. Mr.
4
Kumar submitted that the said activities could not be said to be organized
crime in relation to the provisions of MCOCA or that the petitioner was a
member of an organized crime syndicate involved in such organized crime.

5. It was submitted that the complicity of the petitioner with the offences B
alleged aga;nst the others was not established by the materials on record and
the High Court was not justified in dismissing the writ application filed by the
petitioner challenging the invocation of the provisions of MCOCA in his
case.

6. Mr.Sushi! Kumar's submissions were strongly opposed by Mr. Altaf c
Ahmed, learned senior advocate, appearing for the respondent-State of
Maharashtra. He submitted that the process of investigation under MCOCA
was similar to the provisions relating to investigations under the Code of
Criminal Procedure. He urged that a complaint may not always disclose the
names of all the persons involved in the commission of an offence but such D
names could surface during investigation. Mr. Ahmed urged that the information
given to the investigating authorities regarding the commission of a cognizable
offence as per Section 154 of the Code did not always contain the names of
all persons connected with the alleged offence. Subsequently, however, during
investigation such names may come to light and charges could be laid against
F
them also. Similarly, in a complaint under Section 3 ofMCOCA, an information E
is given of the commission of an offence in respect whereof approval to
investigate is sought under Section 23 (!)(a). Upon receipt of such approval,
the investigating authority proceeds to investigate the offence. Thereafter, if
the charge is proved to be true and the complicity of others, other than those
named in the F.I.R., is also prima facie established, sanction under Section F
23 (2) is prayed for for prosecuting all those persons who were found during
the investigation to be involved in the commission of the offence.

7. According to Mr. Altaf Ahmed, the non-inclusion of the petitioner's
name in the approval granted under Section 23 (I) (a) is of no consequence
since during investigation his complicity was established and thereafter G
sanction was sought to prosecute him along with the others under Section
~
23 (2) of MCOCA. Mr. Ahmed submitted that the allegations against the
~ petitioner were sufficient to charge.sheet him under the provisions ofMCOCA
along with other accused as being part of an organized crime syndicate
H
1028 SUPREME COURT REPORTS [2007] 2 S.C.R.

A involved in the commission of organized crimes. _.,,..
~
8. We have carefully considered the submissions made on behalfofthe
respective parties and the relevant provisions of MCOCA and we are of the

B
view that the High Court did not commit any error in dismissing the petitioner's
writ application. We are inclined to accept Mr. Altaf Ahmed's submissions
that non-inclusion of the petitioner's name in the approval under Section 23
-
(I) (a) ofMCOCA was not fatal to the investigation as far as the petitioner
is concerned. On the other hand, his name was included in the sanction
granted under Section 23 (2) after the stage of investigation into the complaint
where his complicity was established. The offences alleged to have been
_,

c committed by the petitioner has a direct bearing and/or link with the activities
of the other accused as part of the Chhota Rajan gang which was an organized
crime syndicate.

9. As pointed out by Mr. Ahmed, this Court in the case of Kari
Choudhary v. Mst. Sita Devi & Ors., [2002] I SCC 714, had while considering
D a similar question observed that the ultimate object of every investigation is
to find out whether the offences alleged have been committed and, if so, who
had committed it. The scheme of the Code of Criminal Procedure makes it clear
that once the information of the commission of an offence is received under
Section 154 of the Code of Criminal Procedure, the investigating authorities
take up the investigation and file charge sheet against whoever is found
E during the investigation to have been involved in the commission of such
offence. ·There is no hard and fast rule that the First Information Report must
always contain the names of all persons who were involved in the commission
of an offence. Very often the names of the culprits are not even mentioned
in the F.l.R. and they surface only at the stage of the investigation. The
F scheme under Section 23 ofMCOCA is similar and Section 23 (!)(a) provides
a safeguard that no investigation into an offence under MCOCA should be
commenced without the approval of the concerned authorities. Once such
approval is obtained, an investigation is commenced. Those who are
subsequently found to be involved in the commission of the organized crime
can ver'f well be proceeded against once sanction is obtained against them
G under Section 23 (2) of MCOCA.

10. As to whether any offence has at all been made out against the
....
petitioner for prosecution under MCOCA, the High Court has rightly pointed ~

out that the accused will have sufficient opportunity to contest the same
H
before th~ Special Court.
-
VINODG.ASRANlv. STATEOFMAHARASHTRA [Al.TAMAS KABIR, l.] 1029

11. Having regard to the above, we are not inclined to interfere with the A
order passed by the High Court and the special leave petition is accordingly
dismissed.

12. By way of an interim order dated 15th December, 2006, the petitioner
had been granted interim bail which was extended from time to time. In view
of this judgment, the petitioner's bail stands cancelled and he is directed to B
surrender forthwith before the Special Court.

D.G. S.L.P. dismissed.

'