ZAKIR ABDUL MIRAJKAR versus THE STATE OF MAHARASHTRA & ORS.

[2022] 9 S.C.R. 150

[2022] 9 S.C.R.

ZAKIR ABDUL MIRAJKAR

THE STATE OF MAHARASHTRA & ORS.

(Criminal Appeal No. 1125 of 2022)

AUGUST 24, 2022

[DR DHANANJAYA Y. CHANDRACHUD ANDSURYA KANT, JJ.]

Maharashtra Control of Organized Crime Act,1999 –ss.2(1)(f), 3(1)(ii), 3(2), 3(4), 3(5), 18, 23 and 427 – Penal CodeC1860 – ss. 143, 147, 149, 395, 307, 353, 332, 155, 109, 324, 323and 427 – Maharashtra Prevention of Gambling Act 1887 – s. 4and 5 –Maharashtra Prohibition Act 1949 – s.65(e) – Bombay PoliceAct 1951 – s. 37 – Interpretation of the provisions of s.18 MCOCA– Case of the prosecution was that the appellants are members ofDan organized crime syndicate which has engaged in systematiccourse of activities for cheating members of public by conductingthe ‘Mumbai Matka’ (Gambling den) – Police personnel raided oneof the Matka den – FIR was registered on the basis of complaintmade by one of the members of raiding party – During the courseof investigation, the Additional Superintended of Police recordedEthe confession made by many of the accused including theappellants – The competent authority sanctioned the prosecutionof the appellants for the offences under the MCOCA – Appellantsand other accused were arrested – The appellants instituted writpetition before the High Court for quashing of the FIR, which wasFdismissed by the High Court – On appeal, the appellant submittedthat : (i) Confession recorded by an Additional Superintended ofPolice (Addl. SP) u/s 18 MCOCA cannot be proved against theaccused (As s.18(1) provides for, confession made by police officer“not below the rank of the superintendent of Police” shall beadmissible in trial) and (ii) The provisions of MCOCA have notGbeen validly invoked – Held:– (i) The expression “rank” must beunderstood as class or category which encompasses multiple posts– The posts of SP, Addl. SP ,and DCP all fall within the same rank– (ii) The approval order under s.23(1)(a) MCOCA is with respectto the offence and not the offender – Though illegal gambling isHnot an organized crime but it may be route through which the accused

were abetting the commission of organized crime, therefore theappellants may be charged with some offences punishable underMCOCA in relation to the charge of illegal gambling – Further,more than one chargesheet is not required to be filed with respect toeach accused.

Dismissing the appeals, the Court

HELD:1. It is view of this court that the expression “rank”must be understood as class or category which encompassesmultiple posts. The posts of SP, Addl. SP, and DCP all fall withinthe same rankas they exercise similar functions and powers andoperate within similar spheres of authority. Every person withina particular rank will not be of the same seniority. Officers of thesame rank may have been in service for different number ofyears. At times, this may even bear on the post to which they areappointed but their rank remains undisturbed. difference inthe seniority of particular officer is not the same as differencein their ranks. The insignia on officers‘ uniforms denote, in thiscase, their seniority as well as their designations. [Para 63][197-F-G]2. The order of approval under Section 23(1)(a) MCOCAneed not name every accused person at the outset. Often, limitedinformation is available to the investigating authorities at the timeof recording information about the commission of an offence. Theinvolvement of persons other than those named initially may cometo light during the course of investigation by the police. In fact,the very purpose of an investigation is to determine whether acrime has been committed and if so, to shed light on the detailsof the crime including the identity of the perpetrators. This istrue of every crime but especially true in the case of organizedcrime, where an organized crime syndicate may consist of scoresof persons involved in unlawful activities in different capacities.Section 23(1)(a) MCOCA speaks of recording information aboutthe commission of an offence of organized crime, and not ofrecording information about the offender. The competent authoritymay record information under Section 23(1)(a) once it is satisfiedthat an organized crime has been committed by an organized crimesyndicate. [Para 72][201-D-G]

A3. The appellants‘ submission that the allegation of engagingin illegal gambling would not sustain the invocation of the penalprovisions of Section 3(2) MCOCA is simplistic. Althoughgambling may not, by itself, constitute an organized crime, it maybe the route through which the accused are abetting thecommission of organized crime. The question of whether theBappellants are in fact abetting organized crime in this manner, isto be determined at the stage of trial. Similarly, the question ofwhether offences under the IPC would attract MCOCA in thepresent case is to be determined at the stage of trial and dependson the facts and circumstances of each case. The appellants haveCargued that in the preceding ten years, more than one charge-sheet has not been filed in respect of each of them. Thissubmission does not hold water. It is settled law that more thanone charge sheet is required to be filed in respect of the organizedcrime syndicate and not in respect of each person who is allegedto be member of such syndicate. Other courts, too, have heldDthat persons who are alleged to be members of an organized crimesyndicate need not have more than one charge-sheet filed againstthem in an individual capacity. Rather, charge-sheets with respectto the organized crime syndicate are sufficient to fulfil thecondition in Section 2(1)(d). [Para 77, 79][204-E-F, H; 205-A, G-EH]

State of Maharashtra v. Keshav Bhaurao Mulik,Criminal Appeal No 835 of 1974; Kartar Singh v. Stateof Punjab (1994) 3 SCC 569 : [1994] 2 SCR 375; Stateof Rajasthan v. Ajit Singh, (2008) 1 SCC 601 : [2007]F11 SCR 251; State of Maharashtra v. Kamal Ahmed(2013) 12 SCC 17 : [2013] 5 SCR 128; Yakub AbdulRazak Memon v. State of Maharashtra, (2013) 13 SCC1 : [2013] 15 SCR 1; Ranjit Singh v. State of Punjab(2002) 8 SCC 73 : [2002] 2 Suppl. SCR 247; SupremeCourt Advocates-on-Record Association v. Union ofGIndia (1993) 4 SCC 441 : [1993] 2 Suppl. SCR 659;Nyadar Singh v. Union of India (1988) 4 SCC 170 :[1988] 2 Suppl. SCR 546; State of Maharashtra v. LalitSomdatta Nagpal (2007) 4 SCC 171 : [2007] 2 SCR473; Vinod G. Asrani v. State of Maharashtra, (2007) 3HSCC 633 : [2007] 2 SCR 1023; Kavitha Lankesh v.

ZAKIR ABDUL MIRAJKAR v. THE STATE OFMAHARASHTRA

State of Karnataka 2021 SCC OnLine SC 956; GovindSakharam Ubhe v. State of Maharashtra, 2009 SCCOnLine Bom 770 – Referred to.

State Inspector of Police Vishakhapatnam v. SuryaSankaram Karri (2006) 7 SCC 172 : [2006] 5 Suppl.SCR 229; State of Madhya Pradesh v. Chunni Lal (2009)12 SCC 649 : [2009] 6 SCR 145; State of MadhyaPradesh v. Babbu Rathore (2020) 2 SCC 577 : 2020(1) JT 243; State of Punjab v. Hardial Singh, (2009)15 SCC 106 : [2009] 8 SCR 559 – held inapplicable.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1125 of 2022.

From the Judgment and Order dated 21.04.2020 of the High Courtof Judicature at Bombay in Writ Petition No. 3418 of 2019.

With

Criminal Appeal Nos. 1127, 1126, 1129, 1128 and 1130 of 2022.

Amit Desai, Aabad Ponda, Sidharth Luthra, Pradeep Rai, Sr. Advs.,Sandeep Sudhakar Deshmukh, Sajid Imtiyaz Mahat, Irshad Malik,

AMs. Bansuri Swaraj, Siddhesh Kotwal, Ms. Ana Upadhyay, Ms. ManyaHasija, Akash Singh, Nihar Dharmadhikari, Akshat Kumar, SheezanHasmi, Nirnimesh Dube, Kunal Verma, Mrs. Yugandhara Pawar Jha,Swapnil Wagh, Ashwin Nair, Ms. Lavanya Dhawan, Sheezan Hashmi,Kumar Kashyap, Ritik Gupta, Kunal Verma, Atmaram NS Nadkarni,Kunal Verma, Mrs. Yugandhara Pawar Jha, Salvador Santosh Rebello,BSwapnil Wagh, Ashwin Kumar Nair, Ms. Lavanya Dhawan, Ms. DeeptiArya, Adiraj Bali, Ritik Gupta, Ms. Rajshri Rai, Anand Mishra, AmrendraKumar Singh, Vinay Rai, Mohnis Nirwan, Ms. Ritika Gaur, ShashankRai, Shree Prakash Sinha, Rakesh Mishra, Ms. Mohua Sinha,Nawalendra Kumar, Rishabh Gupta, Shekhar Kumar, Advs. for theCAppellant.

Raja Thakare, Sr. Adv., Rahul Chitnis, Sachin Patil, Aaditya A.Pande, Geo Joseph, Ms. Shwetal Shepal, Akash Kavade, Advs. for theRespondent.

The Judgment of the Court was delivered byDDR DHANANJAYA Y. CHANDRACHUD, J.

Contents

A. Facts ................................................................................ 3*

B. Issues ................................................................................8*

C. Submissions ......................................................................9*ED. Analysis ......................................................................... 18*i. An overview of the Maharashtra Control of OrganizedCrime Act 1999 ............................................................ 18*ii. Confession made before police officer “not belowFthe rank of the Superintendent of Police” ............... 22*

iii.Conditions for invocation of the MCOCA……. . 65*

A. Facts

1. The prosecution alleges that the appellants are members of anorganized crime syndicate which has engaged in systematic course ofGactivities for cheating members of the public by conducting the ‘MumbaiMatka’. To explain ‘matkas’ in simple terms, those who wish to gambleplace bets on numbers/playing cards. At the end of the cycle, the resultsare to be declared based on random draw of numbers / playing cards

H*Ed. Note : Pagination is as per the original judgment.

and those who correctly guess the winning digits / playing cards winwhile the others lose. Instead of declaring the winning digits on the basisof random draw, the organizers of the Mumbai Matka are alleged toidentify the number on which the least bets are placed and declare thatto be the winning digit. This is allegedly done in order to ensure that thepay-out is minimal and the profit is as large as possible.

2. Salim Mulla is alleged to be bookie who accepts bets for theMumbai Matka. It is the prosecution’s case that he would transfer themoney he received through the Mumbai Matka to Rakesh Agarwal andManish Agarwal if he anticipated that he would be unable to repay in theevent that the number on which he accepted the highest number of betswas declared the winning number. Rakesh Agarwal and Manish Agarwalwould allegedly accept the risk and discharge the obligation to pay thegamblers if that particular number was indeed declared the winningnumber. Further, they would in turn allegedly transfer the money theyreceived from Salim Mulla to Samrat Korane, the appellant in SLP(Criminal) No. 3722 of 2020, and Zakir Mirajkar, the appellant in SLP(Criminal) No. 3213 of 2020. The latter two, along with Sharad Korane,the appellant in SLP (Criminal) No. 3629 of 2020 would assume the riskand transfer the money once again to Viral Savla, the appellant in SLP(Criminal) No. 3915 of 2020 and Jayesh Savla, the appellant in SLP(Criminal) No. 4170 of 2020, amongst others. It is alleged that in thisfashion, the petitioners and various others are members of an organizedcrime syndicate, of which the lynchpin is Salim Mulla. The main organizersof the Mumbai Matka are alleged to be Prakash Savla, the appellant inSLP (Criminal) No. 3943 of 2020, his son Viral Savla and his brotherJayesh Savla. Finally, Rajendra Dave, the appellant in SLP (Criminal)No. 6034 of 2022 is alleged to assist Salim Mulla and the Savla family bydistributing protection money to various gangsters and purchasing propertyfrom the proceeds of the illegal gambling business. According to theprosecution, the proceeds from the matka business are used to financecriminal gangs and underworld dons.

3. On 8 April 2019, the Assistant SP, Kolhapur and team ofpolice personnel raided what is alleged to be gambling den (colloquiallyknown as ‘matka’ den) controlled by Salim Mulla. It is the prosecution’scase that Salim Mulla’s wife, Shama Mulla, along with some others,assaulted the police team when they were recording the panchnama atthe gambling den.

A4. FIR 136 of 2019 for offences punishable under Sections 143,147, 149, 395, 307, 353, 332, 155, 109, 324, 323 and 427 of the IndianPenal Code 1860,[1] Sections 4 and 5 of the Maharashtra Prevention ofGambling Act 1887,[2] Section 65(e) of the Maharashtra Prohibition Act1949 and Sections 37 and 135 of the Bombay Police Act 1951 wasregistered in PS Rajarampuri, Kolhapur on the basis of complaint madeBby one of the members of the raiding party. The Investigating Officerwas of the opinion that the accused were members of an organizedcrime syndicate led by Salim Mulla, as defined in Section 2(1)(f)Maharashtra Control of Organized Crime Act 1999.[3] She consequentlysubmitted proposal seeking to invoke offences punishable under theCMCOCA, to the competent authority under Section 23(1)(a). Thecompetent authority approved the proposal on 10 April 2019 and Sections3(1)(ii), 3(2), 3(4), and 3(5) MCOCA were added to the FIR. During thecourse of investigation, the Additional Superintendent of Police[4] recordedthe confessions made by many of the accused, including the appellants.Statements of various persons under Section 161 Code of CriminalDProcedure 1973[5] were also recorded.5. On 4 October 2019, the competent authority sanctioned theprosecution of the appellants (amongst others) for offences under theMCOCA. Upon the completion of the investigation, the IO submitted acharge-sheet/final report under Section 173 CrPC on 5 October 2019.EThe charge-sheet was filed with reference to Sections 109, 120(B), 143,147, 149, 155, 332, 353, 307, 395, 427 and 420 IPC, Sections 21(2), 21(3)and 23 of the Banning of Unregulated Deposit Schemes Act 2019,Sections 4 and 5 of the Gambling Act, Section 65(e) of the MaharashtraProhibition Act 1949, Sections 37 and 135 of the Bombay Police ActF1951, and Sections 3(1)(ii), 3(2), 3(4), and 3(5) of the MCOCA.

6. Some of the appellants as well as other accused were arrestedat different points in time following the registration of the FIR. Two ofthem (Samrat Korane and Prakash Savla) are absconding. The petitionersin SLP (Criminal) Nos. 3213 of 2020, 3722 of 2020, 3629 of 2020, 3915Gof 2020, 3943 of 2020 and 4170 of 2020 instituted writ petitions beforethe Bombay High Court for quashing of the FIR. By judgment dated

1 “IPC”

2 “Gambling Act”

3 “MCOCA”

4 “Addl. SP”H5 “CrPC”

21 April 2020 Division Bench of the Bombay High Court dismissed thepetitions for the following reasons:

a.Though gambling may not by itself constitute an organizedcrime, an organized crime syndicate may utilize the profitsfrom the illegal activity for other unlawful activities such ascontract killing, abduction and dacoity. If the state becomesBaware of the existence of an organized crime syndicatewhile conducting raid on gambling establishment, it maytake recourse to MCOCA and carry out an investigation;

b.MCOCA penalizes not only persons who engage inorganized crime but also those who are members of anCorganized crime syndicate and those who abet thecommission of organized crime. The appellants are allegedto have assisted Salim Mulla by providing himaccommodation in the contingency of excessive risksincurred by him. Such assistance is sufficient to invoke theDprovisions of the MCOCA;

c.Some of the appellants are absconding and theirinterrogation is necessary for proper investigation;

d.If certain persons are found to be involved in the commissionof organized crime and their names were not mentioned inthe order granting approval to record information underSection 23(1)(a) MCOCA, they may nevertheless beproceeded against once sanction is obtained under Section23(2) MCOCA;

e.The confessions recorded by the Addl. SP are admissiblebecause Addl. SPs are in the same rank as Superintendentsof Police,[6] in terms of clause 25(2) of the Bombay PoliceManual 1959.[7]

Aggrieved by the judgment of the High Court, the appellantsinvoked the jurisdiction of this court under Article 136 of theConstitution. Rajendra Dave, filed SLP (Criminal) No. 6034 of2022 to challenge an order of aSingle Judge of the Bombay HighCourt dated 11 August 2021 declining bail in connection with thesame FIR for the following reasons:

7 “Police Manual”

Aa.Prima facie, there is sufficient evidence to show thecomplicity in the commission of the alleged offences;

b.The charge-sheet alludes to sufficient material to showactive membership of an organized crime syndicate.

c.A case for the grant of bail is not made out in light of theBrestrictions contained in Section 21(4) MCOCA.

B.Issues

7.Based on the submissions which have been canvassed onbehalf of the appellants, two questions arise fordetermination:

a. Whether confession recorded by an Addl. SP underSection 18 MCOCA can be proved as against theaccused; and

b. Whether the provisions of MCOCA have been validlyDinvoked.

8. Since similar issues arise in the batch of cases, the appealshave been heard together.

C. Submissions

E9. Mr. Amit Desai, Mr. Siddharth Luthra, Mr. Abad Ponda, Mr. V.Giri, Mr. Pradeep Rai, and Mr. ANS Nadkarni, senior counsel, ledarguments on behalf of the appellants. Mr. Amit Desai, learned seniorcounsel who led the arguments (supported by Mr. Abad Ponda)specifically stated that the challenge in the cases he is arguing is confinedto the authority of an Addl. SP to record confession, in view of theFinterdict of Section 18. Mr Desai submitted that the individual facts inthe appeal are not being put forth in this proceeding since the appellantswould follow their remedies at the appropriate stage when they applyfor regular bail.

10. Their submissions were:G

a. Several statutory safeguards have been introduced in theMCOCA including:

i.Informing the accused that the statement would be usedagainst them;

ii. Certification of the statement in writing;

iii. Transmission of the statement to the CJM/CMM to ensurethat no tampering takes place and requiring that thestatement be forwarded to the court taking cognizance; and

iv. Mandate of production before the CMM/CJM who has torecord either complaint or an absence of complaint.

These statutory safeguards are facet of Article 21 of theConstitution, to ensure the protection of the accused who hasmade the statement to police officer while in custody. Theirobject is to ensure fair trial in serious crime involving anorganized crime syndicate.

b.Section 25 commences with non-obstante provisionconferring overriding effect to the MCOCA, notwithstandinganything inconsistent contained in other legislations. The HighCourt has erred in holding that an Addl. SP is empowered torecord confession under the MCOCA, by relying on Para25(2) of the Police Manual. Moreover, the Police Manual isa compendium of administrative circulars and cannotoverride the statutory provisions contained in Section 18 ofthe MCOCA which mandate that no police officer belowthe rank of an SP can record confession;

c.Section 18 MCOCA, which stipulates that confessions madeto “a police officer not below the rank of Superintendent ofPolice” are admissible in evidence, is an exception to thegeneral rule in Section 25 of the Indian Evidence Act 1872[8]and must be construed strictly. An Addl. SP is not of thesame rank as an SP because:

i.Section 8 of the Bombay Police Act 1951 provides thatthe state government “may empoweran AdditionalSuperintendent to exercise and perform … all orany of the powers, functions or duties to be exercisedor performed by Superintendent …”. Hence, thepower vested in the Addl. SP is not inherent but mustbe conferred by the state government. The State ofMaharashtra has not empowered Addl. SPs to exercisethe powers of SPs.

8 “Evidence Act”

Aii.Para 25(2) of the Police Manual indicates that an Addl.SP “performs such duties and exercises such powersof the Superintendent the State Government mighthave assigned to him”. The manual recognizes thatthe Addl. SP is not in the same rank as the SP. It is onlyby fiction of law that they become of the same rank.BThe State of Maharashtra has not issued notificationassigning the power of recording confession underMCOCA to Addl. SPs;

iii.Even if such notifications existed or were to be issued,they would be contrary to Section 25 MCOCA whichCis an overriding provision.

iv.The insignia on the Addl. SP’s uniform is different fromthat on the SP’s uniform, indicating that their ranks arenot the same.

Dv.The Model Police Act 2006 prepared by the UnionGovernment is meant to serve as benchmark for thestates to follow. Clause 32, of the Model Police Act2006 stipulates that commandant “equivalent in rankto Superintendent of Police, shall headeach ArmedPolice Battalion. The Commandant shall be assistedEby Deputy Commandant, equivalent in rank toAdditional Superintendent of Police”. Thisrecognizes the difference in rank between an Addl. SPand an SP. The Police Acts in Sikkim and HimachalPradesh contain similar provisions.

Fd.Trial courts must not be required to answer the question ofwhether one post is equivalent to another. Rather, they mustbe required to ask and answer the simple question ofwhether the police officer recording the confession is anSP. To allow persons other than SPs to record the confessionGwould lead criminal justice down slippery slope;

e.In Sangli district, the post of an SP was in fact availableand hence there was no reason to pick and choose officersfrom the rank of Addl. SP for the purpose of recording theconfession.

f.It is well settled principle of law that where the statuteAlays down procedure, it must be scrupulously followed.In the MCOCA, the legislature has disclosed an intent ofseeking proper investigation of serious crime while atthe same time preserving fairness to the accused.

g.The legislative intent behind Section 18 MCOCA is toBprevent the harassment of the accused. The provision ismandatory and must be strictly construed. There exists alegal presumption that senior, experienced officers will notindulge in inappropriate methods of interrogation during thecourse of investigation. There is significant misuse ofCpolice powers and hence there is need to exercise cautionwhile expanding the scope of Section 18 MCOCA.Recording confession is different from exercising theordinary power of investigation. The recording of aconfession is not ministerial act – confession recordedunder the MCOCA is piece of substantive evidence andDcan be used against the maker of the statement. TheMCOCA embodies stringent provisions for bail in section21(4);

h.The mere existence of sanction under Section 23(2)MCOCA does not cure the defect in following the procedureEunder Section 23(1) MCOCA, as it is non-est and suffersfrom non-application of mind.

i.Gambling by itself is not an organized crime. Gambling ispunishable with maximum sentence of 2 years and doesnot, therefore, fall within the scope of MCOCA (whichFrequires the commission of crime punishable withimprisonment of 3 years or more). The offences under theIPC do not fall within the ambit of Section 2(d) MCOCAand do not constitute continuing unlawful activity. MCOCAhas been incorrectly invoked; it is impermissible to invokeMCOCA for ordinary crimes.G

j.Rule 3(4) of the Maharashtra Control of Organised CrimeRules 1999[9] stipulates that the police officer recording theconfession must give the accused not less than 24 hours to

9 “MCOC Rules”

Areconsider their decision to confess. This rule was notadhered to in the present case.

k.The legislature was cognizant of the difference betweenvarious ranks while enacting MCOCA. Section 23(1)(b)refers to Deputy SP. Sections 14(10) and 23(2) refer toBthe Additional Director General of Police. In contrast,Section 18 MCOCA does not refer either to Deputy SPs orto Addl. SPs. If the legislature intended to include Addl.SPs within the ambit of Section 18 MCOCA, it would havedone so expressly.

C11. Apart from the above submissions, Mr. Siddharth Luthra,learned senior counsel made the following submissions with respect toSharad Korane, Prakash Savla, Jayesh Savla, Suresh Sawant andMeghraj Kambhar:

a.They are not named either in the FIR or in the approval order;andD

b.There is no connection between them and the activities of thegang in question;

c.All the confessions barring one are not recorded by an officerof the rank of an SP but by an Addl. SP.

Learned counsel also submitted that there was no confession asagainst Suresh Sawant.

12. Mr. ANS Nadkarni, learned senior counsel urged that the nameof Viral Savla is missing regarding the filing of charge sheet againsthim. Mr. Pradeep Rai submitted that Samrat Korane was named for theFfirst time in the sanction order, and that he had been discharged in 3 outof 5 FIRs registered in relation to his alleged gambling activities.

13. Shree Prakash Sinha appeared on behalf of Rajendra Davei.e., the petitioner who was denied bail. He submitted that his client’sname was not mentioned either in the FIR or in the order granting approvalGunder Section 23(1)(a). He also argued that his client has been in custodyfor 3 years and deserves to be released on bail.

14. The submissions urged on behalf of the petitioners have beenopposed by the State of Maharashtra. Mr. Raja Thakare, learned seniorcounsel made the following submissions:H

a. Section 18 MCOCA confers the power to record confessionsAby rank and hence, no separate authorisation from the stategovernment is necessary. Section 25 contains an overridingprovision and MCOCA does not require separate authorisationunder any other statute.

b. Addl. SPs and SPs are of the same rank because:

i.The posts of Addl. SP, SP, Deputy Commissioner ofPolice,[10] and Commandant are interchangeable upontransfer. The post of DCP is attached to aCommissionerate. DCP posted in Commissioneratecan be transferred to district either as an Addl. SP or asCan SP. Likewise an Addl. SP or SP in district can beposted on transfer as DCP in Commissionerate.Illustratively, Mr. Nikhil Pingale and Mr. Samadhan Pawarwere DCPs who became Addl. SPs upon beingtransferred in 2018. MCOCA does not mention DCPs orDtheir powers under the enactment. Yet, DCP may recorda confession under Section because she would not bebelow the rank of an SP. If the petitioner’s argumentswere to be accepted, person can record confessionunder MCOCA while posted as DCP in particulardistrict but the same person would be unable to record aEconfession upon transfer to another district as Addl. SP.

ii.The pay scale for Addl. SPs and SPs is the same.

iii.SPs as well as Addl. SPs can be promoted to the post ofDeputy Inspector General of Police.

iv.Addl. SP is non-cadre post. Specific rules in that regardhave been framed under Article 309 of the Constitutionon 25 August 1975. The appointment on promotion is fromthe rank of ACP, Deputy SP or SDPO with stipulatednumber of years of service.

c. The State of Maharashtra has complied with the requirementsof Section 18 MCOCA and Rule 3, MCOC Rules.

d. The approval granted by the competent authority under Section23(1)(a) MCOCA is with respect to the offence and not with

10 “DCP”

Arespect to the offender. The approval granted is akin to anFIR, where the names of all the offenders need not bementioned. Hence, non-inclusion of any accused person’s namein the order of approval is not fatal to the investigation. Theapproval was granted on the basis of proposal submitted bythe Police Inspector, Rajarampuri Police Station to the SpecialBIG.

e. The validity of the approval granted under Section 23(1)(a) orof the sanction under Section 23(1)(b) cannot be tested at thisstage. Their validity can only be determined at the stage oftrial, when the prosecution has the opportunity to adduceCevidence.

f. Sub-sections 1, 2, 3 and 5 of Section 3 commence with theexpression “whoever”. Unlike the above provisions, sub-section4 of Section 3 does not contain the word ‘whoever’ and henceany person who is member of an organised crime syndicateDis liable. The MCOCA was validly invoked as the petitionershave abetted organized crime by rendering financial assistanceto the organized crime syndicate by taking on any potentiallosses from the matka. The material on record points towardsa financial link between the petitioners and the organized crimeEsyndicate.

D. Analysis

i. An overview of the Maharashtra Control of OrganizedCrime Act 1999

F15. The Maharashtra Control of Organized Crime Act 1999, asits long title indicates, is “an Act to make special provisions for theprevention and control of, and for coping with, criminal activity byorganized crime syndicate or gang and for matters connected therewithor incidental thereto”. The statement of objects and reasons containsthe reasons which constituted the foundation for the legislature to stepGin:

Firstly, organized crime which is in existence for some years posesa serious threat to society;

Secondly, organized crime is not confined by national boundaries;

Thirdly, organized crime is fuelled by illegal wealth generated bycontract killing, extortion, smuggling and contraband, illegal tradein narcotics, kidnapping for ransom, collection of protection moneyand money laundering, and other activities;

Fourthly, the illegal wealth and black money generated by organizedcrime pose adverse effects on the economy;

Fifthly, organized crime syndicates make common cause withterrorists fostering narcoterrorism which extends beyond nationalboundaries;

Sixthly, the existing legal framework in terms of penal andprocedural laws and the adjudicatory system were found inadequateto curb and control organized crime; and

Seventhly, the special law was enacted with “stringent and deterrentprovisions” including in certain circumstances, the power tointercept wire, electronic or oral communication.

16. In understanding the ambit of the enactment, emphasis mustbe given to three definitions:

a. Organized crime (Section 2(1)(e));[11]

b. Organized crime syndicate (Section 2(1)(f));[12] and

c. Continuing unlawful activity (Section 2(1)(d).[13]

17. The expression ‘organised crime’ is defined with reference toa continuing unlawful activity. The definition is exhaustive since it is

11 Section 2(1)(e) – “organized crime” means any continuing unlawful activity by anindividual, singly or jointly, either as member of an organized crime syndicate or onbehalf of such syndicate, by use of violence or threat of violence or intimidation orcoercion, or other unlawful means, with the objective of gaining pecuniary benefits, orgaining undue economic or other advantage for himself or any other person or promotinginsurgency.

12 Section 2(1)(f) – “organised crime syndicate” means group of two or more personswho, acting either singly or collectively, as syndicate or gang indulge in activities oforganised crime.

13 Section 2(1)(d) – “continuing unlawful activity” means an activity prohibited by lawfor the time being in force, which is cognizable offence punishable with imprisonmentof three years or more, undertaken either singly or jointly, as member of an organisedcrime syndicate or on behalf of such syndicate in respect of which more than onecharge-sheets have been filed before comptent Court within the preceding period often years and that Court has taken cognizance of such offence ;

Aprefaced by the word “means”. The ingredients of an organized crimeare:

a. The existence of continuing unlawful activity;

b. Engagement in the above activity by an individual;

Bc. The individual may be acting singly or jointly either as memberof an organized crime syndicate or on behalf of such asyndicate;

d. The use of violence or its threat or intimidation or coercion orother unlawful means; andCe. The object being to gain pecuniary benefits or undue economic

e. The object being to gain pecuniary benefits or undue economicor other advantage either for the person undertaking the activityor any other person or for promoting insurgency.

18. The above definition of organized crime, as its elementsindicate, incorporates two other concepts namely, continuing unlawfulDactivity and an organized crime syndicate. Hence, it becomes necessaryto understand the ambit of both those expressions. The ingredients of acontinuing unlawful activity are:

a. The activity must be prohibited by law for the time being inforce;

b. The activity must be cognizable act punishable withimprisonment of three years or more;

c. The activity may be undertaken either singly or jointly as amember of an organized crime syndicate or on behalf of sucha syndicate;F

d. More than one charge-sheet should have been filed in respectof the activity before competent court within the preceedingperiod of ten years; and

e. The court should have taken cognizance of the offence.

G19.The elements of the definition of “organized crime syndicate”

are :

a. group of two or more persons;

b. Who act singly or collectively, as syndicate or gang; and

Hc. Indulge in activities of organized crime.

20. Both Section 2(1)(d) while defining “continuing unlawfulactivity” and Section 2(1)(e) while defining “organized crime” containthe expression “as member of an organized crime syndicate or onbehalf of such syndicate”. While defining an organized crime syndicate,Section 2(1)(f) refers to “activities of organized crime”.

21. Section 3 provides for the punishment for organized crime.[14]Sub Section (1) of Section 3 covers “whoever commits an offence oforganized crime”. Sub Section (2) covers whoever conspires or attemptsto commit or advocates, abets or knowingly facilitates the commissionof an organized crime or any act preparatory to organized crime. SubSection (3) covers whoever harbours or conceals or attempts to harbouror conceal any member of an organized crime syndicate. Sub Section(4) covers any person who is member of an organized crime syndicate.Sub Section (5) covers whoever holds any property derived or obtainedfrom the commission of an organized crime or which has been acquiredthrough the funds of an organized crime syndicate. Section 4 punishesthe possession of unaccountable wealth on behalf of member of an

organized crime syndicate.

14 Section 3 – (1) Whoever commits an offence of organised crime shall,— (i) if suchoffence has resulted in the death of any person, be punishable with death orimprisonment for life and shall also be liable to fine, subject to minimum fine ofrupees one lac;

(ii) in any other case, be punishable with imprisonment for term which shall not beless than five years but which may extend to imprisonment for life and shall also beliable to fine, subject to minimum fine of rupees five lacs. (2) Whoever conspires orattempts to commit or advocates, abets or knowingly facilitates the commission of anorganised crime or any act preparatory to organised crime, shall be punishable withimprisonment for term which shall be not less than five years but which may extendto imprisonment for life and shall also be liable to fine, subject to minimum fine ofrupees five lacs.(3) Whoever harbours or conceals or attempts to harbour or conceal, any member of anorganised crime syndicate shall be punishable with imprisonment for term which shallnot be less than five years but which may extent to imprisonment for life, and shall alsobe liable to fine, subject to minimum fine of rupees five lacs.

(4) Any person who is member of an organised crime syndicate shall be punishablewith imprisonment for term which shall not be less than five years but which mayextend to imprisonment for life and shall also be liable to fine, subject to minimumfine of rupees five lacs.

(5) Whoever holds any property derived or obtained from commission of an organisedcrime or which has been acquired through the organised crime syndicate funds shall bepunishable with term which shall not be less than three years but which may extendto imprisonment for life and shall also be liable to fine, subject to minimum fine ofrupees two lacs.

Aii. Confession made before police officer “not below therank of the Superintendent of Police”

22. The crux of the controversy in the present batch of casesturns on the interpretation of the provisions of Section 18.[15 ]Sub Section(1) of Section 18 is prefaced with non obstante provision whichBoperates notwithstanding anything contained in the CrPC[16] or the EvidenceAct.

23. Having incorporated non obstante clause in sub Section(1), the statute uses the expression “but subject to the provisions of this

15 Section 18 – (1) Notwithstanding anything in the Code or in the Indian Evidence Act,C1872, but subject to the provisions of this section, confession made by personbefore police officer not below the rank of the Superintendent of Police and recordedby such police officer either in writing or on any mechanical devices like cassettes,tapes or sound tracks from which sounds or images can be reproduced, shall be admissiblein the trial of such person or co-accused, abettor or conspirator:Provided that, the co-accused, abettor or conspirator is charged and tried in the sameDcase together with the accused.(2) The confession shall be recorded in free atmosphere in the same language in whichthe person is examined and as narrated by him.

(3) The police officer shall, before recording any confession under sub-section (1),explain to the person making it that he is not bound to make confession and that, if hedoes so, it may be used as evidence against him and such police officer shall not recordany such confession unless upon questioning the person making it, he is satisfied thatEit is being made voluntarily. The concerned police officer shall , after recording suchvoluntry confession, certify in writing below the confession about his personalsatisfaction of the voluntary character of such confession, putting the date and time ofthe same.

(4) Every confession recorded under sub-section (1) shall be sent forthwith to the ChiefMetropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over thearea in which such confession has been recorded and such Magistrate shall forward theFrecorded confession so recived to the Special Court which may take cognizance of theoffence.

(5) The person from whom confession has been recorded under subsection (1) shallalso be produced before the Chief Metropolitan Magistrate or the Chief JudicialMagistrate to whom the confession is required to be sent under sub-section (4) alongwiththe original statement of confession, written or recorded on mechanical device withoutunreasonable delay.G(6) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate shall scrupulouslyrecord the statement, if any, made by the accused so produced and get his signature andin case of any complaint of torture, the person shall be directed to be produced formedical examination before Medical Officer not lower in rank than of an AssistantCivil Surgeon.

16 The expression Code which used in Section 18(1) is defined in Section 2(b) to meanHthe Code of Criminal Procedure 1973.

section”. Sub Section (1) stipulates that confession made by personbefore police officer “not below the rank of the Superintendent ofPolice” shall be admissible at the trial of such person or co-accused,abettor or conspirator, if it has been recorded by such police officereither in writing or on any mechanical devices like cassettes, tapes orsound tracks from which sounds and images can be reproduced. Theconfession can be used against co-accused, abettor or conspirator ifthey are charged and tried in the same case together with the accused.

24. The reason why Section 18(1) contains non obstanteprovision overriding the Evidence Act is because Section 25 of theEvidence Act stipulates that no confession made to police officer shallbe proved as against person accused of an offence. The bar containedin Section 25 is limited by sub Section (1) of Section 18 of the MCOCA.Evidently, the Legislature while lifting the bar was conscious of theunderlying rationale for Section 25 of the Evidence Act. Section 25 ofthe Evidence Act is based on legislative understanding that there is agrave danger that confession made to police officer may have beenobtained under coercion, torture, or duress.

25. Hence, while lifting the bar contained in the provisions of theEvidence Act, the legislature has employed the expression “subject tothe provisions of this section”. In doing so the legislature has indicatedan intent that the admissibility of confession recorded under sub Section(1) of Section 18 is subject to compliance with the statutory safeguardswhich are embodied in the provision.

26. Sub Section (1) of Section 18 contains two safeguards, thefirst being with reference to the person who records the confession andthe second in terms of the modalities for recording the confession. Asfor the former, sub Section (1) stipulates that the confession must bemade before police officer “not below the rank of the Superintendentof Police”. The other safeguards which the statute has embodied inSection 18 are:

a.the requirement that the confession should be recordedeither in writing or on any mechanical devices from whichsounds or images can be reproduced (sub Section (1));

b.the confession (besides being admissible at the trial of themaker) is admissible at the trial of co-accused, abettor orconspirator only when the co-accused abettor or conspirator

ABC

170SUPREME COURT REPORTS

are charged and tried in the same case together with theaccused (proviso to sub Section (1)).

c.the recording of the confession in “a free atmosphere”, inthe same language in which the person is examined and asnarrated by him (sub Section (2));

d.the duty of the police officer to disclose to the person makingthe confession, before recording the confession under subSection (1), that:

i.he is not bound to make confession;

ii. if he does so, it may be used as evidence against him(sub Section (3));

e.the mandate that the police officer shall not record anyconfession unless upon questioning the person making it,he is satisfied that it is being made voluntarily (sub Section(3));

f.the requirement that upon being satisfied that the confessionis being recorded voluntarily, the police officer shall certifythe same in writing below the confession along with thedate and time (sub Section (3));

Eg.the transmission of the confession forthwith to the ChiefMetropolitan Magistrate or the Chief Judicial Magistratehaving jurisdiction of the area and the forwarding of theconfession so received to the Special Court which may takecognizance of the offence (sub Section (4));

Fh.the production of the maker of the confession before theChief Metropolitan Magistrate or the Chief JudicialMagistrate to whom the confession is required to be sentunder sub Section 4, together with the original statement ofthe confession, without unreasonable delay (sub Section (5));and

i.the duty of the Chief Metropolitan Magistrate or the ChiefJudicial Magistrate to scrupulously record the statementmade by the accused produced before him and get hissignatures, and in the event of complaint of torture, todirect the production of the accused for medical examination

before Medical Officer not lower in rank than an AssistantCivil Surgeon. (sub Section (6)).

The legislature has made the admissibility of confession recordedin terms of sub Section (1) of Section 18 conditional on theobservance of the above statutory safeguards.

27. The outcome of these appeals depends on the construction ofthe expression “before police officer not below the rank of theSuperintendent of Police”. The provisions contained in Section 18(1)are an exception to the general principle embodied in Section 25 of theEvidence Act and must be strictly construed.

28. The issue as to whether confession recorded by an Addl. SPis confession made “before police officer not below the rank of theSuperintendent of Police” was raised before the High Court. Thesubmission of the appellants was that since Section 18 contemplates therecording of confessions by police officer not below the rank of SP,almost all the confessions in connection with the present FIR wereinadmissible, having been recorded by an Addl. SP. It appears from thejudgment of the High Court that the Special Public Prosecutor, whileresponding to this submission, placed reliance on para 25(2) of the PoliceManual to urge that the Addl. SP (as the High Court noted the submission)“is in the same position as the SP in the area for which he is appointed”.The High Court rejected the appellants’ submission in the absence of achallenge to para 25(2) of the Police Manual.[17]

29. It is necessary to clear the air of the argument which wasfounded on para 25 of the Police Manual. The Police Manual purportsto contain rules under the Bombay Police Act 1951, the Bombay Police(Extension and Amendment) Act 1959 and other departmental regulations.Para 25 of the Police Manual provides that:

17 Para 19 of the impugned judgment of the High Court reads as follows:

“19] One more contention came to be raised on behalf of the petitioners to the effectthat the confessions recorded in the present matter are inadmissible and they need to beignored. It is submitted that Section 18 of the MCOC Act contemplates recording ofconfessions by police officer not below the rank of Superintendent of Police. It issubmitted that in the present matter almost all confessions are recorded by AdditionalSuperintendent of Police. As against this, the learned Spl. P.P. has pointed out clause 25(2) of Bombay Police Manual, 1959, which inter-alia states that AdditionalSuperintendent of Police is in the same position as the Superintendent of Police in thearea for which he is appointed. In absence of any challenge to the said clause, we arecompelled to reject this contention.”

CDE

A“25. Superintendent of Police:

(1) Subject to the orders of the District Magistrate and the InspectorGeneral of Police in their respective spheres of authority, thedirection and regulation of the Police through-out district is vestedin the Superintendent as the executive head of the force and heBhas full control over the internal economy of the force under himincluding arms, drill, exercise, prevention and investigation of crime,prosecution, discipline and other matters of executive detail;

(2) An Additional Superintendent of Police is in the same positionas the Superintendent of Police in the area he is appointed andCperforms such duties and exercise such powers of theSuperintendents the State Government might have assigned tohim.

30. Sub-para 1 of para 25 indicates that the direction and regulationof the Police throughout the district is vested in the Superintendent asDthe head of the force, subject to the orders of the D.M. and the IGP intheir spheres of authority. Sub para 2 indicates that an Addl. SP “is in thesame position as” the SP in the area for which he is appointed and“exercises such powers of the Superintendents the State governmentmight have assigned to him”.

E31. Dealing with the provisions of para 25 (2) of the Police Manual,Mr Amit Desai urged:

a. The Addl. SP is not in the same rank as the SP;

b. By extension, the Addl. SP is in the same position as an SP andperforms such duties and exercises such powers which areFassigned by the State government; and

c. There is no notification by the Government of Maharashtraassigning the power of recording confessions under theMCOCA to the Addl. SP in terms of para 25(2) of the PoliceManual.

32. The reliance on para 25(2) of the Police Manual by the SpecialPublic Prosecutor was misconceived for more than one reason. TheHigh Court and this Court, in appeal, have been called upon to interpretthe provisions of special Act, the MCOCA. Section 18(1) MCOCAdoes not envisage specific delegation of authority to police officerH“not below the rank of the SP” for the purpose of recording confession.

The admissibility of the confession is determined by whether it has beenrecorded by police officer “not below the rank of the SP” and bywhether the statutory safeguards have been complied with. Section 25MCOCA gives overriding effect to the provisions of the Act and to anyrules made under it as well as to orders issued under rule notwithstandinganything inconsistent contained in any other law for the time being inforce or any instrument having the force of law.[18]

33. Section 18(1) does not interpose an additional requirement ofa specific authorization by the state government for recording aconfession under the MCOCA, the requirement of the statute being thatthe police officer who records such confession is not below the rank ofSP. The effort on the part of the Special Public Prosecutor to justify theauthority of the Addl. SP to record confession under Section 18(1) onthe basis of the provisions of para 25(2) of the Police Manual wastherefore fraught with error. As matter of fact, Mr Thakare, learnedsenior counsel appearing on behalf of the state is therefore right insubmitting that there is no question of importing the requirement of anauthorization into Section 18(1) by reading it together with para 25(2) ofthe Police Manual. The High Court was led into relying on the PoliceManual by the submission of the public prosecutor. submission whichis made on question of law by counsel appearing for party (in thiscase, the state) cannot bind that party or for that matter, preclude thisCourt from correctly interpreting the law. During the course of thesubmissions, the provisions of Section 8 of the Maharashtra Police Act1951 have been adverted to.[19] Section 8 provides as follows:

“8. Appointment of [Superintendent and] Additional, Assistant andDeputy Superintendents.

The State Government may appoint for each District or for partof district or for one or more Districts [a Superintendent ofPolice] and one or more Additional, Assistant and DeputySuperintendents of Police, as it may think expedient.

The State Government may by general or special order, empoweran Additional Superintendent to exercise and perform in the district

18 Section 25 of the MCOCA is as follows:

The provisions of this Act or any rule made thereunder or any order made under anysuch rule shall, have effect notwithstanding anything inconsistent therewith containedin any other law for the time being in force or in any instrument having the force of law.19 “Police Act”

for which he is appointed or in any part thereof, all or any of thepowers, functions or duties to be exercised or performed by a[Superintendent] under this Act or under any law for the timebeing in force.

The District Superintendent may, with the previous permission ofthe State Government delegate any of the powers and functionsconferred on him by or under this Act to an Assistant or DeputySuperintendent;

4 [Provided that, the powers, to be exercised by the Superintendentof making, altering or re

Gujarat Amendment: In Sec. 8 of the Bombay Police Act, 1951 inSub-section (3), for the words “conferred on him by or under thisAct to an Assistant or Deputy Superintendent”, the words“conferred on him by or under this Act, except the power to make,alter or rescind rules or orders under Sec. 33, to an Assistant orDeputy Superintendent” shall be substituted.

[8-A.] 2 (Appointment of Director of Police Wireless andSuperintendent], Assistant and Deputy Superintendents forWireless System, Motor Transport System or any specific duty.

The State Government may appoint for the whole of the State orfor any part thereof- 3 [(i) one or more Directors of Police Wirelessand Deputy Inspector General of Police for the Police WirelessSystem (hereinafter referred to as “the Director of PoliceWireless)as it thinks fit; and (ii) one or more Superintendents ofPolice and Assistant and Deputy Superintendent of Police as itthinks fit]. a) For the Police Wireless System; b) For Police MotorTransport System; or c) For the performance of such specifiedduties as the State Government may from time to time determinein this behalf.

4 [Any Director of Police Wireless and Superintendent] appointedshall exercise such powers and perform such functions as theState Government may from time to time 5 [assign to each ofthem]. [The Director may, with the previous permission of theState Government, delegate any of the powers and functionsconferred on him by or under this Act to Superintendent, or toan Assistant or deputy Superintendent and the Superintendent may,subject to the like previous permission, delegate such powers and

functions to an Assistant or Deputy Superintendent:] Providedthat the powers and functions aforesaid shall be exercised orperformed by 6 [the District Superintendent or Assistant or DeputySuperintendent, subject to the control of Inspector-General.].”

34. Sub-section (1) of Section 8 empowers the State governmentto appoint an SP and one or more Addl. SP, Assistant SPs and DeputySPs as it may think expedient for each district, part of district or forone or more districts. In terms of sub-Section (2) the State government,by general or special order, may empower an Addl. SP to exercise andperform in the district for which he is appointed or in any part thereof, allor any of the powers, functions or duties to be exercised or performedby an SP under the Police Act or under any law for the time being inforce. Sub-Section (3) empowers the SP to delegate his powers andfunctions to an Assistant SP or Deputy SP, with the previous permissionof the State government. Section 8 is adverted to by the appellants forthe purpose of indicating that:a. There exists specific statutory conferment of power on thestate government to appoint inter alia SPs and Addl. SPs inany given district; and

b. Addl. SPs may exercise and perform the powers, functionsand duties entrusted to an SP in that district, upon beingempowered by the State government by general or specialorder.

35. The argument of the appellants is that the enabling power insub-section (2) of Section 8 has not been exercised by the Stategovernment by empowering the Addl. SP to exercise the power conferredon an SP under Section 18(1) of the MCOCA misses the crux of thematter. The MCOCA is special Act enacted with an overridingprovision in Section 25. The tenability of the submission that an Addl. SPdoes not fit the description of an officer not below the rank of SP cannotbe determined by reading into the MCOCA provisions for authorizationcontained either in the Police Manual (para 25(2) as noticed above) or inanother statute (Section 8(2) of the Police Act). The answer to thechallenge which was raised before the High Court and on behalf of theappellants before this Court must turn on the interpretation of theprovisions of Section 18(1) MCOCA itself. Section 18(1) rendersadmissible confession made by person before police officer “notbelow the rank” of the SP.

A36. Mr Amit Desai, learned seniour counsel placed reliance on ajudgment of Single Judge of the Bombay High Court dated 1 September1977 in State of Maharashtra v. Keshav Bhaurao Mulik,[20] wherethe respondent had been acquitted by the JMFC Solapur on the chargeof having committed offences punishable under Sections 4 and 5 of theGambling Act. The prosecution was based on the allegation that one ofBthe accused was using house in Solapur as common gaming housefor accepting matka bets. This house was raided by certain officers ledby the Addl. SP of that area; no warrant was obtained before the raidwas effected. The prosecution argued that warrant was not necessaryas the Addl. SP was empowered to conduct the raid. In exercise of theCpower conferred by Section 8(2) of the Police Act, the Government ofMaharashtra issued notification on 24 November 1971 empoweringthe Addl. SP, Solapur to exercise and perform in Solapur district “all thepowers, functions and duties to be exercised and performed by DistrictSuperintendent of Police under said Act”. The Single Judge of the HighCourt held that by virtue of this order, the Addl. SP was only empoweredDto exercise the powers, functions and duties of an SP under the PoliceAct and not under any other law for the time being in force. Section 6 ofthe Gambling Act stipulated that it shall be lawful for police officer notbelow the rank of Sub-Inspector andeither empowered by generalorder in writing or authorized in each case by special warrant issuedEby the Commissioner of Police to enter any house, room, or place whichhe has reason to suspect was being used as common gaming house, toconduct search. similar provision was contained for areas other thanthose within the jurisdiction of Commissioner of Police.

37. The decision of the Single Judge of the High Court in theFabove case is clearly distinguishable since the Gambling Act specificallycontained requirement of warrant of authorization. The warrant ofauthorization which was relied upon by the State under Section 8(2) ofthe Police Act only related to the performance of functions under thePolice Act. It was in this backdrop that the Single Judge held that the

Addl. SP could not have exercised the powers of an SP under the GamblingGAct and could not have issued warrant to carry out search. In otherwords, there was specific requirement of an authorization under theGambling Act for carrying out search and in the absence of such anauthorization, the search was itself held to be unlawful.

38. At this stage, it would be necessary to advert to some of thedecisions of this Court bearing on the issue. In Kartar Singh v. State ofPunjab,[21] Constitution Bench of this Court inter alia considered thevalidity of Section 15 of the Terrorist and Disruptive Activities (Prevention)Act 1987[22] on challenge that it violated Article 14 of the Constitution.While rejecting the challenge, the Court held :

“254. In view of the legal position vesting authority on higher policeofficer to record the confession hitherto enjoyed by the judicialofficer in the normal procedure, we state that there should be nobreach of procedure and the accepted norms of recording theconfession which should reflect only the true and voluntarystatement and there should be no room for hyper criticism thatthe authority has obtained an invented confession as source ofproof irrespective of the truth and creditability (sic) as it could beironically put that when Judge remarked, “Am I not to hear thetruth”, the prosecution giving startling answer, “No, Your Lordshipis to hear only the evidence”.”

39. The Court upheld the statutory provision under challenge, notingthat the power to record confessions had been vested in “higher policeofficer” which had hitherto been enjoyed by judicial officer. The courtheld that there should be no breach of procedure or accepted normswhile recording the confession, which should reflect only true andvoluntary statements. The Court proceeded to formulate guidelines toensure that confession obtained in pre-indictment interrogation by apolice officer not lower in rank than an SP was not tainted.[23]

21 (1994) 3 SCC 569

22 “TADA”

23 The guidelines which have been formulated in paragraph 263 of the judgment are asfollows:

“(1) The confession should be recorded in free atmosphere in the same language inwhich the person is examined and as narrated by him;

(2) The person from whom confession has been recorded under Section 15(1) of theAct, should be produced before the Chief Metropolitan Magistrate or the Chief JudicialMagistrate to whom the confession is required to be sent under Rule 15(5) along withthe original statement of confession, written or recorded on mechanical device withoutunreasonable delay;

(3) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate shouldscrupulously record the statement, if any, made by the accused so produced and get hissignature and in case of any complaint of torture, the person should be directed to beproduced for medical examination before Medical Officer not lower in rank than of anAssistant Civil Surgeon;

178SUPREME COURT REPORTS

A40. In State of Rajasthan v. Ajit Singh,[24] two judge Bench ofthis Court while considering the provisions of Section 15 of the TADAadverted to the decision in Kartar Singh, observing:

“10. It will be seen that Section 15 is clear departure from thegeneral law that statement made to police officer is notBpermissible in evidence. In Kartar Singh case [(1994) 3 SCC569 : 1994 SCC (Cri) 899] this Court while upholding the vires ofSection 15 repeatedly dwelt on the severity of this provision asone laying down altogether new procedure and emphasised thatthe provisions of the Act and the Rules must be scrupulouslyobserved with particular reference to the provisions relating toCthe recording of confessions.”41. The decision of two judge Bench in State of Maharashtrav. Kamal Ahmed[25] dealt with the validity of confession which wasrecorded under the MCOCA. The Court observed that since Section 18of the MCOCA is an exception to the rule laid down in Sections 25 andD26 of the Evidence Act, it would have to be interpreted strictly “for thelimited purpose contemplated there under”. In Yakub Abdul RazakMemon v. State of Maharashtra,[26] two judge Bench of this Courtheld that compliance with the provisions of Section 15 and Rule 15 ofthe TADA is required before confession made to police officer isEadmissible in law. In Ranjit Singh v. State of Punjab,[27] two judge

(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, nopolice officer below the rank of an Assistant Commissioner of Police in the Metropolitancities and elsewhere of Deputy Superintendent of Police or police officer of equivalentrank, should investigate any offence punishable under this Act of 1987.

This is necessary in view of the drastic provisions of this Act. More so when theFPrevention of Corruption Act, 1988 under Section 17 and the Immoral Traffic PreventionAct, 1956 under Section 13, authorise only police officer of specified rank toinvestigate the offences under those specified Acts.

(5) The police officer if he is seeking the custody of any person for pre-indictment orpre-trial interrogation from the judicial custody, must file an affidavit sworn by himexplaining the reason not only for such custody but also for the delay, if any, in seekingthe police custody;G(6) In case, the person, taken for interrogation, on receipt of the statutory warning thathe is not bound to make confession and that if he does so, the said statement may beused against him as evidence, asserts his right to silence, the police officer must respecthis right of assertion without making any compulsion to give statement of disclosure”24 (2008) 1 SCC 60125 (2013) 12 SCC 1726 (2013) 13 SCC 1H27 (2002) 8 SCC 73

Bench of this Court noted that an Addl. SP (PW4) recorded theconfessional statements of two of the accused on the oral directions ofthe SP (PW3) who he admitted was above him in the administrativehierarchy,. Half an hour had been granted to the accused, who hademerged from police custody of 18-20 days, to reflect on whether theyshould make their statements. This Court held half an hour was inadequateto enable the accused to reflect. After noticing the admission of theAddl. SP that the SP who had instructed him to record the confessionwas above him in the administrative hierarchy, the court held :

“19. There is another aspect of recording of confessionalstatements by PW 4. As already noticed, he was Additional SP.In the administrative hierarchy he was lower in rank than PW 3Shri Niwas Vashisht, SP. Learned counsel for the State has notbeen able to show any rule, regulation or other provision toestablish the status of PW 4 — police officer, an AdditionalSuperintendent of Police. Nothing was brought to our notice toestablish that he was police officer not lower in rank than theSuperintendent of Police. It was, however, submitted by the learnedcounsel that even if the two confessional statements recorded byPW 4 are kept out of consideration still the conviction can beupheld only on the basis of the confessional statements recordedby PW 3. We have already expressed hereinbefore our views inrespect of the confessional statements recorded by PW 3.”

42. The above finding, therefore, turned on specific admissionby the Addl. SP that the SP was above him in the administrative hierarchyand on the inability of the State to produce any rule, regulation or provisionto establish the status of the Addl. SP

43. Section 18(1) MCOCA stipulates that “a confession made bya person before police officer not below the rank of the Superintendentof Police” shall be admissible subject to other statutory stipulations. Theexpression “not below the rank of” is used in certain other provisions ofthe MCOCA. Section 14(10) uses the expression “an Officer not belowthe rank of Additional Director General of Police” while specifying whois empowered to authorize an investigating police officer to interceptwire, electronic or oral communications. Section 23 uses the expression“police officer not below the rank of” or, as the case may be, “policeofficer below the rank of” in three contexts: first, in relation to therecording of information about the commission of an offence of organized

Acrime; second, in relation to an investigation into an offence under theprovisions of the MCOCA; and third, taking of cognizance of an offenceunder the MCOCA by court. On the recording of information aboutthe commission of an offence of organized crime under the Act, Section23(1)(a) requires the prior approval of police officer not below therank of Deputy Inspector General of Police. Section 23(1)(b) prohibitsBthe investigation of an offence under the MCOCA by police officerbelow the rank of Deputy SP. Before the court takes cognizance of anoffence under the Act, Section 23(2) requires the previous sanction of apolice officer not below the rank of Additional Director General Of Police.

44. The submission of the appellants is that the legislature wasCconscious of different ranks in the hierarchy of Maharashtra Police andhas consciously used the expression “Additional” in Section 14(1) whilereferring to the Additional Director General of Polic). Similarly, it hasbeen urged that the legislature has consciously used the expression“Deputy” while referring to the Deputy Inspector General of Police inDSection 23(1)(a) and the Deputy SP in Section 23(1)(b). By process ofdeduction, it has been urged that when in Section 18(1), the legislaturehas used the expression “Superintendent of Police” it could well haveemployed the words “or Additional Superintendent of Police” as it hasused the expression “Additional” in the statutory provisions noted above.Based on this reasoning, it has been urged that the absence of theEexpression “Additional” in Section 18(1) should lead to the conclusionthat the legislature intended that only the SP should record confession.

45. The submission which has been urged on behalf of theappellants by drawing comparison with certain other provisions of theMCOCA, must on close reflection be treated with caution. Section 18(1),Flike certain other provisions of the MCOCA which have been notedearlier, uses the expression “rank”. The expression “rank” cannot beconflated or equated with designation or post. In P Ramanatha Aiyar’sLaw Lexicon (1997 edition), the expression rank has been defined in thefollowing terms:G“Rank-Precedence. The word ‘rank’ in common parlance, as alsoin English diction refers to position, especially an official onewithin social organization, of high social order or other standingstatus. Likewise, the word ‘precedence’ denotes the ceremonialorder or priority to be observed on formal occasions, or right to

preferential treatment. S.C. Advocates on Record Association v.Union of India, AIR 1994 SC 268, 445.”

46. Black’s Law Dictionary (fifth edition) similarly defines theexpression “rank” as:

“Rank, n. Position in society. Grade of quality or value. Grade ofofficial standing. The order or place in which certain officers areplaced in the army and navy, in relation to others. Rank is oftenused to express something different from office. It then becomesa designation or title of honor, dignity, or distinction conferred uponan officer in order to fix his relative position in reference to otherofficers in matters of privilege, precedence, and sometimes ofcommand, or by which to determine his pay and emoluments.This is the case with the staff officers of the army. Wood v. U.S.,15 Ct.Cl. 151, 159.”

47. In Supreme Court Advocates-on-Record Association v.Union of India,[28]a nine-judge Bench of this Court observed that theword “rank” was intimately associated with primacy:

“494. … In the same strain the word “primacy” denotes the stateof being first in rank or being in formal state i.e. the most importantstate. Thus it would be seen that not only is the word “primacy”inextricably linked up with the words “rank” and “precedence”but conceptually they all are of the same family and breed, blockand substance.”

48. The legislature has not used the expression “designation” or“post” in Section 18 but, on the other hand, has used the expression“rank”. The true question is whether the rank of the SP comprehendswithin it an Addl. SP. If an Addl. SP is of rank inferior to that of an SPthen clearly the holder of the rank of an Addl. SP would not be competentto record confession under Section 18(1). Contrariwise, if an Addl. SPbelongs to the same rank as an SP there would be no statutory bar on anAddl. SP recording confession. Whether an Addl. SP fulfils thedescription of police officer “not below the rank of the Superintendentof Police” cannot be deduced on superficial consideration of otherprovisions of the MCOCA but the answer to the question must be deducedindependently.

A49. Section 2 of the All India Services Act 1951 defines theexpression “an all India Service” to mean “the service known as theIndian Administrative Service or the service known as the Indian PoliceService or any other service specified in Section 2A”. Section 3(1)empowers the Central Government, after consulting the governments ofthe states concerned, to make rules for regulating the recruitment andBthe conditions of service of persons appointed to an all India Service. Inexercise of the powers conferred by Section 3(1), the Union Governmenthas framed the Indian Police Service (Cadre) Rules 1954. Rule 2(a)defines the expression ‘cadre officer’ as “a member of the Indian PoliceService”. Rule 2(b) defines ‘cadre post’ to mean any of the posts specifiedCunder item 1 of each cadre in the schedule to the Indian Police Service(Fixation of Cadre Strength) Rules 1955. Rule 1(2) stipulates that theposts which are borne on and the strength and composition of the cadreof the Indian Police Service of the various states shall be as specified inthe schedule to the regulations. The schedule contains entries pertainingto the states, among them, the State of Maharashtra. The entry relatingDto Maharashtra is extracted below.

[2022] 9 S.C.R.

ABCDEFG

[2022] 9 S.C.R.

50. The schedule indicates that the cadre strength is distributedbetween various posts including:

a. Director General of Police;

b. Additional Director General of Police;

c. Commissioner of Police;

d. Special Inspector General of Police;

e. Joint Commissioner of Police;

f.Additional Commissioner of Police;

g. Deputy Inspector General of Police;

h. Superintendent of Police;

i.Commandant, State Reserve Police Force; and

j.Deputy Commissioner of Police.

51. On 16 October 2018, the Central Government, in exercise ofthe powers conferred by Section 3(1) of the All India Services Act 1951read with sub-rules 1 and 2 of Rule 4 of the IPS (Cadre) Rules 1954,notified the Indian Police Service (Fixation of Cadre Strength) SecondAmendment Regulations 2018. The schedule to the Indian Police Service

188SUPREME COURT REPORTS[2022] 9 S.C.R.ABCDEFG

190SUPREME COURT REPORTS[2022] 9 S.C.R.ABCDEFGH

A52. We have adverted to the All India Services Act 1951 and theIndian Police Service (Cadre) Rules 1954 and the All India Services Act1951. Apart from the cadre strength as constituted on the basis of theabove provisions, it becomes necessary to advert to the rules whichhave been framed by the State government on 25 August 1975 inpursuance of the provisions of Article 309 of the Constitution forBrecruitment to the non-cadre posts of SP and Deputy Commissioner ofPolice. These rules which govern the non-cadre posts are called theSuperintendent of Police and Deputy Commissioner of Police (Non-Cadre) Recruitment Rules 1976.[29] Rule 2 provides as follows:

“2. Unless the post is filled by appointment of an I.P.S. OfficerCappointment to the non-cadre post of Superintendent of Police(including Deputy Commissioner of Police) may be made bypromotion of suitable officer from the State Police Service, whohas to his credit six years of continuous service as DeputySuperintendent of Police or Assistant Commissioner of Police orDin post which in the opinion of the State Government is of anequivalent rank.”

53. These rules were amended on 9 June 1987. Rule 2 of the1976 Rules was amended so as to substitute the requirement of sevenyears of continuous service for six years of continuous service. TheseErules which have been framed under Article 309 of the Constitutionindicate that besides the cadre strength of SPs drawn from the IPS,there are non-cadre SPs and DCPs who are appointed in accordancewith the 1975 Rules.

54. The Counter Affidavit which has been filed by the Stateindicates that fifteen confessional statements have been recorded in theFpresent batch of cases. The details of the confessions are set out below:

a.Confessional Statement dated 13 April 2019 of Mr. ShridharShijavi Kamble (Accused No. 17), recorded by the Addl.SP, Satara;

Gb.Confessional Statement dated 13 April 2019 of Mr MushfiqNibikhan Pathan (Accused no. 20), recorded by the Addl.SP, Satara;

c.Confessional Statement dated 13 April 2019 of Mr SahilANiyaj Mujawar (Accused no. 15), recorded by the Addl.SP, Satara;

d.Confessional Statement dated 14 April 2019 of Mr. AjayBalaso Kamble (Accused no. 13), recorded by the Addl.SP, Sangli;

e.Confessional Statement dated 9 May 2019 of Mr ZakirAbdul Miajkar (Accused no. 31) (Petitioner) recorded bythe Addl. SP, Sangli;

f.Confessional Statement dated 13 May 2019 of Mr RakeshCMadanlal Agrawal (Accused no. 30) recorded by the Addl.SP, Baramati, Dist. Pune (Rural);

g.Confessional Statement dated 13 May 2019 of Mr AnkushMaruti Vagre (Accused no. 32), recorded by the Addl. SP,Baramati Dist. Pune (Rural);

h.Confessional Statement dated 6 June 2019 of Mr SureshJaywant Sawant (Accused no. 34) recorded by the Addl.SP, Sangli;

i.Confessional Statement dated 16 June 2019 of Mr ShaileshGunvantrao Maniyar (Accused no. 37) recorded by theAddl. SP, Baramati, Dist. Pune (Rural);

j.Confessional Statement dated 18 June 2019 of Mr JayeshShevantilal Shah (Accused no. 36) recorded by the Addl.SP, Baramati Dist. Pune (Rural);

k.Confessional Statement dated 24 June 2019 of Mr ViralPrakash Savla (Accused no. 38) recorded by the Addl. SP,Baramati Dist. Pune (Rural);

l.Confessional Statement dated 27 June 2019 of Mr Jitendra@ Jitu Kantilal Gosaliya (Accused no. 39) recorded by theSP, Satara;

m.Confessional Statement dated 25 July 2019 of Mr JayeshHirji Savla (Accused no. 40) recorded by the Addl. SP, Pune(Rural);

An.Confessional Statement dated 12 August 2019 of MrRajendra @ Raju Dharamse Dave @ Topi (Accused no.41) recorded by the Addl. SP, Satara; and

o.Confessional Statement dated 23 September 2019 of MrManish Kishor Agarwal (Accused no. 42) recorded by theBAddl. SP, Baramati Pune (Rural).

55. Thus fourteen of the fifteen confessions have been recordedby Addl. SPs. The fifteenth (at serial ‘l’ above) has been recorded bythe SP, Satara. The State Government has stated in its Counter Affidavitthat “ranks” and “posts” have distinct connotations. Moreover, it hasCbeen stated that an Addl. SP is of the rank of an SP and is vested with allthe powers, duties and functions of an SP. The state government seeksto contrast the provisions of Section 8(2) with Section 8(3) of theMaharashtra Police Act. Under section 8(2) the State Government mayby general order empower Addl. SPs to exercise or perform the powers,duties and functions of SPs. On the other hand, sub-section 3 of SectionD8 provides that the District SP may, with the previous permission of theState Government, delegate any of the powers and functions conferredupon him to the Assistant or Deputy SP. The State Government arguesthat while section 8(3) provides for the delegation of the powers of anSP to an Assistant or Deputy SP, it does not envisage delegation of theEpowers of the SP to an Addl SP because the Addl SP is of the same rankand hence, no question of the delegation of powers arises.

56. We have already noted earlier that Section 18(1) MCOCAdoes not contemplate any specific authorisation of police officer notbelow the rank of SP for the purpose of recording confessions. TheFstand of the State Government with reference to the provisions of clause25(2) of the Police Manual and Section 8 of the Maharashtra Police Actwould therefore have to be read subject to the analysis in the earlier partof this judgment.

57. The State Government has explained in its Counter AffidavitGthat an officer having the same rank can be posted at various positions/posts in different parts of the police organisation. The rank of SP has agrade pay of Rs. 6,600/- and includes Addl. SP, DCP, Commandants andPrincipals. If an officer having the rank of SP is posted in:

a. Commissionerate area, then he/she is posted as DCP;Hb. District area, then he/she is posted as an SP or Addl. SP;

c. Crime Investigation Department (CID) or Anti-Terrorist Squad

(ATS), then he/she is posted as SP.

DCP is competent to record confessions under the MCOCA. lfan SP or Addl. SP is transferred to the area of Commissionerate, he /she is posted as DCP and is competent to record the confession underthe MCOCA.

58. The above explanation by the State Government on affidavithas been duly supported during the course of the hearing on the basis oforders of promotion or posting which have been produced on record.The rules of 1975 provide for the creation of Addl. SP non-cadre postsof Addl SP and DCP. An ACP in Commissionerate or Deputy SP ina district or Sub-Divisional Police Officer with the stipulated period ofcontinuous service can be posted on promotion as DCP (in aCommissionerate) or, as the case may be, as an Addl. SP or Commandantin the State Reserve Police Force. An Addl. SP, DCP and Commandantare in the same rank as an SP and these posts are interchangeable ontransfer.

59. During the course of his submissions, Mr Raja Thakare, learnedsenior counsel has adverted to notification dated 1 October 2016 issuedby the Home Ministry of the Government of Maharashtra notifying thepromotion list for 2015-2016. Learned senior counsel has pointed outthat, for instance, Serial No. 11 (Vivek Gopalrao Patil) who was Sub-Divisional Police Officer was promoted as DCP in the State IntelligenceDepartment. Mr Thakare has also relied upon notification dated 27July 2018 by the Home Ministry, Government of Maharashtra notifyingthe transfer and posting of police officers. Serial Nos. 86 (Samadhan NPawar) and 87 (Sandip Jadhav) were persons who were posted as DCPsand were transferred to the post of Addl. SPs. DCP when posted inthe Commissionerate may record confession since the incumbent is inthe same rank as an SP. On transfer, DCP can be posted as an Addl.SP and continues to be in the same rank as an SP. There is therefore nobasis to conclude that an Addl. SP does not fulfil the description specifiedin Section 18(1) MCOCA as being “a police officer not below the rankof the Superintendent of Police”.

60. The appellants have produced during the course of the hearingthe structure of the Mumbai police from the website of the MaharashtraPolice. For convenience of reference, it is extracted below:

61. Mr Amit Desai, learned Senior Counsel has relied upon theabove depiction. The structure as set out on the website has no bearingon the power, functions, or authority which is exercised by non-cadreofficers of the rank of DCP (within Commissionerate) or, as the caseFmay be, by Addl. SPs (in district posting). The above structure indicatesthat DCP may be in the rank of SP (selection grade), SP (juniormanagement grade), Addl. SP (less than ten years’ service) or Addl. SP(state police service). This internal classification, however, does not disturbthe basic position that all these ranks are subsumed within the designationof DCP. DCP, when posted in Commissionerate, is of the same rankGas an SP and can therefore record confession under Section 18(1). ADCP is interchangeable upon transfer with an Addl. SP or SP. Theauthority which attaches to the post of DCP to record confessionunder Section 18(1) is not diluted when the posting is in district eitheras an Addl. SP or, as the case may be, as an SP. Accepting the submission

of the appellants will lead to an obvious incongruity. DCP, while beingposted in Commissionerate, can record confession under Section18(1) of the MCOCA (a point which is not disputed during the course ofsubmissions by the appellants). Yet, if the submission of the appellantswere to be accepted, DCP who is on transfer posted as an Addl SP ina district would be disentitled to record confession under section 18(1).Hence, there is an obvious fallacy in the submissions of the appellants.

62. This Court’s observations in Nyadar Singh v. Union of India[30](albeit in the context of Article 311 of the Constitution) are useful tounderstand the meaning of the expression “rank”:

“13. … In Article 311(2) the penalty of “reduction in rank” isclassed along with “dismissal” and “removal” for the reason thatthe penalty of reduction in rank has the effect of removing agovernment servant from class or grade or category of postto lesser class or grade or category. Though the governmentservant is retained in service, however, as result of the penaltyhe is removed from the post held by him either temporarily orpermanently and retained in service in lesser post. The expression“rank”, in “reduction in rank” has for purposes of Article 311(2)an obvious reference to the stratification of the posts or grades orcategories in the official hierarchy. It does not refer to the mereseniority of the government servant in the same class or grade orcategory.”

(emphasis supplied)

63. It is our view that the expression “rank” must be understoodas class or category which encompasses multiple posts. ThepostsofSP, Addl. SP, and DCP all fall within the same rankas they exercisesimilar functions and powers and operate within similar spheres ofauthority. Every person within particular rank will not be of the sameseniority. Officers of the same rank may have been in service for adifferent number of years. At times, this may even bear on the post towhich they are appointed but their rank remains undisturbed. differencein the seniority of particular officer is not the same as difference intheir ranks. The insignia on officers’ uniforms denote, in this case, theirseniority as well as their designations.

64. Mr Amit Desai has sought to rely on the Model Police Code2006. The provisions of model code cannot be deployed to bear uponthe true interpretation of the statutory provision enacted in Section 18(1).

65. The appellants have relied on the decision of this court inState Inspector of Police Vishakhapatnam v. Surya SankaramBKarri[31] to urge that an Addl. SP is not authorized to record confessionsunder the MCOCA. The decision in Surya Sankaram Karri (supra)related to an offence punishable under the Prevention of Corruption Act1988.[32] The second proviso to Section 17 of the PC Act provides that anoffence under Section 13(1)(e) shall not be investigated without the orderof police officer not below the rank of an SP. In other words, policeCofficer of the rank of SP must authorize any investigation into an offencealleged to have been committed under Section 13(1)(e). The InvestigatingOfficer in that case was unable to produce any record which establishedthat he had been duly authorized by the SP to conduct the investigation.Therefore, this Court found that the statutory requirements under theDPC Act had not been met.66. The judgment in Surya Sankaram Karri (supra) is of noassistance to the appellants as the court did not have occasion to discussthe distinction between rank and designation or to explore the conditionsunder which officers could be said to be of equivalent ranks. The questionEfor consideration in that case was not whether an officer who hadauthorized the investigation could be said to be of the same rank as anSP, but whether any authorization existed at all. In the present case, noquestion of authorization arises as the MCOCA itself empowers anyofficer not below the rank of SP to record confession. The SP (or anofficer of equivalent rank) is not required to obtain authorization from anFofficer senior to her or from the government, prior to recordingconfessions.

67. The appellants also rely on State of Madhya Pradesh v.Chunni Lal[33] to urge that confessions recorded by an Addl. SP areinadmissible in evidence because an Addl. SP is not of the same rank asGan SP. In Chunni Lal (supra), the respondent was accused of committingan offence under the Scheduled Castes and Scheduled Tribes (Preventionof Atrocities) Act 1989.[34] Section 9 of the SC/ST Act read with Rule31 (2006) 7 SCC 17232 “PC Act”33 (2009) 12 SCC 649H34 “SC/ST Act”

7(1) of the Scheduled Castes and Scheduled Tribes (Prevention ofAtrocities) Rules 1995[35] stipulates that an investigation into an offenceunder the Act shall be conducted by an officer “not below the rank of aDeputy Superintendent of Police”. The investigation in Chunni Lal(supra) was conducted by Sub-Inspector and was, therefore, found tobe illegal and invalid. This Court held that an officer below the rank ofDeputy SP could not act as an investigating officer with respect tooffences under the Act due to the statutory requirement in Section 9 andRule 7(1). It was not in dispute that Sub-Inspector was lower in rankto the Deputy SP. The competent authority had mistakenly appointed anofficer who could not be empowered to conduct an investigation intooffences under the Act. Similarly, the decision in State of MadhyaPradesh v. Babbu Rathore[36]pertains to case where Sub-Inspectorconducted the investigation into an offence under the SC/ST Act. Theinvestigation there was also found to be invalid and illegal for similarreasons as in Chunni Lal (supra). These cases did not necessitate adiscussion on when an officer could be said to be of the same rank asthe Deputy SP. It is for this reason that the decisions in Chunni Lal(supra) and Babbu Rathore (supra) cannot be relied upon to supportthe submission of the appellants that an Addl. SP is not of the same rankas an SP.

68. In State of Punjab v. Hardial Singh,[37] the SP(D) authorizeda Deputy SP to conduct an investigation into offences under the SC/STAct. However, Rule 7(1) of the SC/ST Rules stipulates that theInvestigating Officer is to be appointed by the State Government or theDirector General of Police or the SP. The High Court of Punjab andHaryana ruled that an SP(D) was not competent to appoint Deputy SPto conduct an investigation as an SP(D) was not in charge of her district.The power to do so lay only with the three authorities specified in theSC/ST Rules i.e., the State Government, the Director General of Police,and the SP. It is important to note the language used in the SC/ST Rulesand in MCOCA respectively. Rule 7(1) of the SC/ST Rules states:

“An offence committed under the Act shall be investigated by apolice officer not below the rank of Deputy Superintendent ofPolice. The investigating officershall be appointed by the State

35 “SC/ST Rules”36 (2020) 2 SCC 57737 (2009) 15 SCC 106

AGovernment /Director General of Police/SuperintendentofPolice after taking into account his past experience, sense of abilityand justice to perceive the implications of the case and investigateit along with right lines within the shortest possible time.”

(emphasis supplied)

BIn contradistinction, Section 18(1) of MCOCA states:

Notwithstanding anything in the Code or in the Indian EvidenceAct, 1872, but subject to the provisions of this section, confessionmade by person before police officer not below the rankof the Superintendent of Policeand recorded by such policeCofficer either in writing or on any mechanical devices like cassettes,tapes or sound tracks from which sounds or images can bereproduced, shall be admissible in the trial of such person or co-accused, abettor or conspirator :

Provided that, the co-accused, abettor or conspirator is chargedDand tried in the same case together with the accused

(emphasis supplied)

69. Rule 7(1) of the SC/ST Rules indicates that other than theState Government, only those persons designated as the Director Generalof Police or as the SP may appoint an investigating officer. Unlike SectionE18(1) MCOCA, Rule 7(1) does not provide for officers of rankequivalent to the Director General of Police or to the SP to appointinvestigating officers. In contrast, Section 18(1) MCOCA clearly veststhose officers who are of the same rank as the SP with the power torecord confessions, in addition to vesting that power with the SP. This isFclearly evident from the use of the expression “not below the rank ofSuperintendent of Police”. The SC/ST Rules are concerned with thedesignation of the competent authority while MCOCA is concerned withthe rank of the relevant officer. Hence, the appellants cannot rely onHardial Singh (supra) to argue that an Addl. SP is not the same rank asan SP.G

iii. Conditions for invocation of the MCOCA

70. It is the appellants’ case that the provisions of the MCOCAhave not been validly invoked. Their arguments (which have been notedin the segment on submissions) are addressed below.

a. The approval order under Section 23(1)(a) MCOCA is withrespect to the offence and not with respect to the offender.

71. The appellants rely on State of Maharashtra v. LalitSomdatta Nagpal[38] to argue that the order of approval dated 10 April2019 is vitiated by non-application of mind. This Court observed that theapproval order under Section 23(1)(a) in that case did not mention thename of one of the accused persons. This omission was partly the reasonfor its decision to set aside the proceedings under the MCOCA withrespect to said accused. However, this was not the only factor whichhad bearing on the Court’s decision. The Court was also persuaded toset aside the proceedings because the authorities had arraigned theconcerned accused on charges under MCOCA in respect of violationsof sales tax and excise laws. The Court found that violations of sales taxand excise laws were not intended to attract MCOCA and that somedegree of coercion or violence was required to charge an accused underthe provisions of the MCOCA.72. The order of approval under Section 23(1)(a) MCOCA neednot name every accused person at the outset. Often, limited informationis available to the investigating authorities at the time of recordinginformation about the commission of an offence. The involvement ofpersons other than those named initially may come to light during thecourse of investigation by the police. In fact, the very purpose of aninvestigation is to determine whether crime has been committed and ifso, to shed light on the details of the crime including the identity of theperpetrators. This is true of every crime but especially true in the caseof organized crime, where an organized crime syndicate may consist ofscores of persons involved in unlawful activities in different capacities.Section 23(1)(a) MCOCA speaks of recording information about thecommission of an offence of organized crime, and not of recordinginformation about the offender. The competent authority may recordinformation under Section 23(1)(a) once it is satisfied that an organizedcrime has been committed by an organized crime syndicate.

73. In Vinod G. Asrani v. State of Maharashtra,[39]this Courtnoticed the similarities of the scheme of MCOCA and of the CrPC inthat persons could be charged with committing offences, following thecompletion of investigation:

38 (2007) 4 SCC 171

39 (2007) 3 SCC 633

DEF

A“9. … The scheme of the Code of Criminal Procedure makes itclear that once the information of the commission of an offence isreceived under Section 154 of the Code of Criminal Procedure,the investigating authorities take up the investigation and filecharge-sheet against whoever is found during the investigation tohave been involved in the commission of such offence. There isBno hard-and-fast rule that the first information report must alwayscontain the names of all persons who were involved in thecommission of an offence. Very often the names of the culpritsare not even mentioned in the FIR and they surface only at thestage of the investigation. The scheme under Section 23Cof MCOCA is similar and Section 23(1)(a) provides safeguardthat no investigation into an offence under MCOCA should becommenced without the approval of the authorities concerned.Once such approval is obtained, an investigation is commenced.Those who are subsequently found to be involved in the commissionof the organised crime can very well be proceeded against onceDsanction is obtained against them under Section 23(2) of MCOCA.

10. As to whether any offence has at all been made out againstthe petitioner for prosecution under MCOCA, the High Court hasrightly pointed out that the accused will have sufficient opportunityto contest the same before the Special Court.”E

74. In Kavitha Lankesh v. State of Karnataka,[40] three-judgebench of this Court held that prior approval under the Karnataka Controlof Organized Crime Act 2000 was concerned with the offence and notwith the offender:

F“27. At the stage of granting prior approval under Section 24(1)(a)of the 2000 Act, therefore, the competent authority is not requiredto wade through the material placed by the Investigating Agencybefore him along with the proposal for grant of prior approval toascertain the specific role of each accused. The competentauthority has to focus essentially on the factum whether theGinformation/material reveals the commission of crime which isan organized crime committed by the organized crime syndicate.In that, the prior approval is qua offence and not the offender assuch.”

Section 24(1)(a) of the Karnataka Control of Organized CrimeAct 2000 is pari materia to Section 23(1)(a) MCOCA. Whetherthe appellants were named in the approval order under Section23(1)(a) is immaterial while determining its validity.

75. In Kavitha Lankesh (supra), the Court also held:

“27. … As long as the incidents referred to in earlier crimesare committed by group of persons and one common individualwas involved in all the incidents, the offence under the 2000Act can be invoked.”

b. The appellants may be charged with some offencespunishable under MCOCA in relation to the charge ofillegal gambling.

76. The appellants argued that gambling is punishable with amaximum sentence of 2 years and does not, therefore, fall within thescope of MCOCA (which requires the commission of crime punishablewith imprisonment of 3 years or more). However, not all the offencespunishable under MCOCA have this requirement. The appellants havebeen charged under the following provisions of MCOCA:

a. Section 3(1) i.e., the offence of committing organized crimerequires the accused to have committed cognizable offencewhich is punishable with imprisonment of three years or more.

b. One part of Section 3(2) also contains similar requirementto Section 3(1), namely persons can be accused of conspiring,attempting to commit, advocating, or knowingly facilitating thecommission of an organised crime or any act preparatory toorganised crime, only if the offence in question is cognizableone, which is punishable with imprisonment of at least threeyears. However, those accused of abettingthe commission oforganized crime need not themselves be charged withcommitting cognizable offence punishable with imprisonmentof at least three years. They need only be abetting those whoare guilty of committing cognizable offence punishable withimprisonment of at least three years, which offence amountsto an organized crime. The definition of “abet” in Section2(1)(a) would be applicable in such cases.

Ac.Section 3(4) provides that any person who is member of anorganized crime syndicate is liable to be penalized. Thedefinition of an organized crime syndicate in Section 2(1)(f)indicates that it is necessary to indulge in organized crime tobe considered member. Section 2(1)(e) indicates that personsare said to commit organized crime when they are involved inBcontinuing unlawful activity. Continuing unlawful activity, inturn, means prohibited activity which is cognizable offencepunishable with imprisonment of at least three years.

d.Section 3(5) stipulates that those who hold any property derivedor obtained from commission of an organised crime or whichChas been acquired through the organised crime syndicate fundsare liable to be punished. Once again, the definition of anorganized crime requires the commission of cognizableoffence punishable with imprisonment of three years of more.Hence, Section 3(5) MCOCA may be invoked only withDrespect to offences which are punishable with imprisonmentof three years of more.

77. From the analysis above, the appellants’ submission that theallegation of engaging in illegal gambling would not sustain the invocationof the penal provisions of Section 3(2) MCOCA is simplistic. AlthoughEgambling may not, by itself, constitute an organized crime, it may be theroute through which the accused are abetting the commission of organizedcrime. The question of whether the appellants are in fact abettingorganized crime in this manner, is to be determined at the stage of trial.Similarly, the question of whether offences under the IPC would attractMCOCA in the present case is to be determined at the stage of trial andFdepends on the facts and circumstances of each case. The observationin Lalit Somdatta Nagpal (supra) that some degree of coercion orviolence is required to charge an accused under provisions of MCOCAmust be read together with Section 2(1)(e) which recognizes that “otherunlawful means” may be used while committing organized crime, inGaddition to coercion and violence.c. More than one charge-sheet is not required to be filed withrespect to each accused person.

The appellants have argued that in the preceding ten years, morethan one charge-sheet has not been filed in respect of each of them.HThis submission does not hold water. It is settled law that more than one

charge sheet is required to be filed in respect of the organized crimesyndicate and not in respect of each person who is alleged to be memberof such syndicate.

78. In Govind Sakharam Ubhe v. State of Maharashtra,[41] atwo-judge Bench of the Bombay High Court, speaking through JusticeRanjana Desai (as the learned judge then was) held that:

“37. … Section 2(1)(d) which defines ‘continuing unlawful activity’sets down period of 10 years within which more than one charge-sheet have to be filed … It is the membership of organized crimesyndicate which makes person liable under the MCOCA. Thisis evident from section 3(4) of the MCOCA which states that anyperson who is member of an organized crime syndicate shall bepunished with imprisonment for term which shall not be lessthan five years but which may extend to imprisonment for life andshall also be liable to fine, subject to minimum of fine of Rs. 5lakhs. The charge under the MCOCA ropes in person who as amember of the organized crime syndicate commits organized crimei.e. acts of extortion by giving threats, etc. to gain economicadvantage or supremacy, as member of the crime syndicatesingly or jointly. Charge is in respect of unlawful activities of theorganized crime syndicate. Therefore, if within period ofpreceding ten years, one charge-sheet has been filed in respectof organized crime committed by the members of particularcrime syndicate, the said charge-sheet can be taken against amember of the said crime syndicate for the purpose of applicationof the MCOCA against him even if he is involved in one case.The organized crime committed by him will be part of thecontinuing unlawful activity of the organized crime syndicate. Whatis important is the nexus or the link of the person with organizedcrime syndicate. The link with the ‘organized crime syndicate’ isthe crux of the term ‘continuing unlawful activity’. If this link isnot established, that person cannot be roped in.”

79. Other courts, too, have held that persons who are alleged tobe members of an organized crime syndicate need not have more thanone charge-sheet filed against them in an individual capacity. Rather,charge-sheets with respect to the organized crime syndicate are sufficientto fulfil the condition in Section 2(1)(d).

41 2009 SCC OnLine Bom 770

ABC

DEF

A80. For the above reasons, we find no merit in the appeals. Theappeals shall stand dismissed. However, it is clarified that: (i) theappellants are at liberty to approach the High Court for release on bail;and (ii) the evidentiary value of confessions alleged to have been madeby the appellants shall be considered by the trial court and the merevalidation of their being recorded by an officer in the rank ofBSuperintendent of Police shall not be construed as the approval of thecontents or voluntary nature of the alleged confessions by this Court.

81. Pending application(s), if any, stand disposed of.

CAnkit Gyan(Assisted by : Aarsh Choudhary, LCRA)

Appeals dismissed.