Case Note & Summary
The judgment of the Bombay High Court arose from five writ petitions filed by Altaf Ismail Sheikh, Avinash Tukaram Sanas, Dr. Baban Shivram Kadam, Vishwanath Purushottam Kelkar, and Nitin Uttamrao Sathe, who challenged the approval for recording the commission of an offence and the FIR No. 6 of 2005 under Sections 3 and 7 of the Maharashtra Control of Organised Crime Act, 1999 (MCOC Act). The petitioners contended that the activities disclosed in the FIR as constituting organised crime referred to a period prior to 24th February 1999, when the MCOC Act came into force, and therefore the proceedings violated Article 20(1) of the Constitution of India, which prohibits ex post facto criminal laws. The respondents, including the State of Maharashtra and officers of the Anti-Corruption Bureau, defended the investigation. The main legal issue was whether the approval and FIR were valid when the alleged acts occurred before the enforcement of the MCOC Act. The court examined the constitutional protection under Article 20(1) and the scope of writ jurisdiction under Article 226 to quash an FIR at the investigation stage. Relying on a line of Supreme Court decisions in G.P. Nayyar, Rao Shiv Bahadur Singh, West Ramnad Electric, Tarun Bora, and Kalpnath Rai, the court reiterated that a person cannot be convicted for an act that was not an offence at the time of its commission, and that the phrase "law in force" in Article 20(1) refers to the law factually in existence at the relevant time, not a law deemed to have retrospective effect. The court further noted that if the acts complained of ex facie cannot constitute an offence under the MCOC Act, the High Court would be justified in exercising its power under Article 226 to quash the prosecution, but only in extreme and rare cases, and not where the matter is debatable. The judgment concluded with the court reserving its final order after discussing these principles.
Headnote
A) Constitutional Law - Ex Post Facto Laws - Article 20(1) - Prohibition Against Retrospective Criminalisation - Constitution of India, Article 20(1) - Maharashtra Control of Organised Crime Act, 1999, Sections 3 and 7 - The petitioners challenged the approval and FIR alleging organised crime under the MCOC Act on the ground that the activities disclosed occurred before the Act came into force on 24 February 1999 - The Court held that Article 20(1) prohibits conviction for acts that were not offences at the time of commission; if the acts complained of predate the Act, the accused cannot be subjected to proceedings under it - Relied on G.P. Nayyar v. State (Delhi Administration), AIR 1979 SC 602; Rao Shiv Bahadur Singh & Anr. v. State of Vindhya Pradesh, AIR 1953 SC 394; M/s. West Ramnad Electric Distribution Co. Ltd. v. State of Madras & Anr., AIR 1962 SC 1753; Tarun Bora v. State of Assam, 2002 AIR SCW 3417; Kalpnath Rai v. State (through CBI), 1997 AIR SCW 4166 - Held that if a party substantiates that the acts charged as offences are under a statute enacted after commission, they get Article 20 protection (Paras 4-9).
B) Criminal Procedure - Quashing of FIR at Investigation Stage - Article 226 - Scope of Writ Jurisdiction - Constitution of India, Article 226 - Maharashtra Control of Organised Crime Act, 1999, Sections 3 and 7 - The Court examined whether the High Court can interfere at the stage of investigation when the FIR does not disclose an offence under the MCOC Act - Held that in extreme cases where acts ex facie cannot constitute an offence under the special statute, the High Court is justified in invoking Article 226 to quash the prosecution; but not where it is debatable - Relied on State of Maharashtra v. Abdul Hamid Haji Mohammed, (1994) 2 SCC 664 (Paras 8-9).
Issue of Consideration
Whether the approval and FIR under the Maharashtra Control of Organised Crime Act, 1999 are valid when the alleged acts occurred prior to the enforcement of the Act on 24th February 1999, in light of Article 20(1) of the Constitution of India.
Law Points
- Article 20(1) prohibits ex post facto criminal laws
- Maharashtra Control of Organised Crime Act
- 1999 not applicable to acts committed before 24 February 1999
- High Court can quash FIR under Article 226 if acts cannot constitute offence under the Act
Case Details
2005 LawText (BOM) (04) 97
Criminal Writ Petition No. 689 of 2005 with Criminal Writ Petition No. 700 of 2005, Criminal Writ Petition No. 411 of 2005, Criminal Writ Petition No. 518 of 2005, Criminal Writ Petition No. 532 of 2005
R.M.S. Khandeparkar, P.V. Kakade
Shri Navin Chomal, S/Shri Nilesh Pawaskar with Samir A Vaidya, S/Shri R.S.Dave with P.R.Dave, S/Shri A.P.Mundargi with A. Khan, Shri D.S. Mhaispurkar
Altaf Ismail Sheikh, Avinash Tukaram Sanas, Dr. Baban Shivram Kadam, Vishwanath Purushottam Kelkar, Nitin Uttamrao Sathe
The State of Maharashtra, The Joint Commissioner of Police Anti Corruption Bureau Maharashtra State, The Asst. Commissioner of Police Anti Corruption Bureau Special Cell Mumbai Unit, The Director General of Police Maharashtra State
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Nature of Litigation
Writ petitions challenging the approval for recording the commission of an offence and the FIR No. 6 of 2005 under Sections 3 and 7 of the Maharashtra Control of Organised Crime Act, 1999.
Remedy Sought
Quashing of the approval and the FIR.
Filing Reason
The activities disclosed in the FIR as organised crime referred to a period prior to 24th February 1999, when the MCOC Act came into force, thus allegedly violating the prohibition against ex post facto criminal laws under Article 20(1) of the Constitution.
Issues
Whether the approval and FIR under the MCOC Act are valid when the alleged acts occurred prior to the Act's enforcement on 24th February 1999, in light of Article 20(1) of the Constitution.
Whether the High Court can exercise jurisdiction under Article 226 to quash the FIR at the investigation stage when the acts ex facie do not constitute an offence under the MCOC Act.
Submissions/Arguments
Petitioners argued that the activities disclosed in the FIR occurred before the MCOC Act came into force, and therefore the proceedings violate Article 20(1) of the Constitution, which prohibits conviction for acts that were not offences at the time of commission.
Petitioners further contended that the High Court should invoke its writ jurisdiction under Article 226 to quash the FIR and the approval as they are unconstitutional.
Respondents (State) opposed the petitions, arguing that the investigation should not be interfered with at the preliminary stage.
Ratio Decidendi
Article 20(1) of the Constitution prohibits conviction for acts that were not offences under the law in force at the time of commission. If the acts alleged in the FIR occurred before the Maharashtra Control of Organised Crime Act, 1999 came into force (24 February 1999), the petitioners cannot be subjected to prosecution under that Act. The High Court, under Article 226, has the power to quash the FIR and investigation if it is clear ex facie that the acts complained of do not constitute an offence under the MCOC Act, but such interference is warranted only in extreme and rare cases, not where the matter is debatable.
Judgment Excerpts
The Article 20(1) of the Constitution of India is very clear in that regard and reads that "no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence." (Para 4)
It was held that "it cannot, therefore, be doubted that the phrase "law in force" as used in Art.20 must be understood in its natural sense as being the law in fact in existence and in operation at the time of the commission of the offence as distinct from the law "deemed" to have become operative by virtue of the power of legislature to pass retrospective laws." (Para 5)
In Tarun Bora alias Alok Hazarika v. State of Assam, reported in 2002 AIR SCW 3417, the Apex Court ... held that the conviction of the accused under Section 3(5) of the TADA Act was not sustainable in view of the provisions of Article 20(1) of the Constitution of India. (Para 7)
In a case where a party approaches the Court with a grievance that he is made to subject to criminal proceedings by initiating investigation by registering the FIR in relation to the commission of offence under a particular statute with reference to the acts done by the said person even prior to the enforcement of the statute in question, certainly it would be then necessary for the Court to look into the matter and if the grievance is found to be of substance, then to pass an appropriate order... (Para 8)
in State of Maharashtra v. Abdul Hamid Haji Mohammed, reported in (1994) 2 SCC 664 while examining a question regarding justification for the exercise of writ jurisdiction under Article 226 of the Constitution of India for quashing the prosecution in an offence punishable under the TADA Act, it was held that if the acts complained of ex facie cannot constitute an offence punishable under TADA Act, then the High Court would be justified in invoking the power under Article 226... (Para 9)
Procedural History
The petitioners filed five separate Criminal Writ Petitions (Nos. 689, 700, 411, 518, and 532 of 2005) before the High Court of Judicature at Bombay, challenging the approval for recording the commission of offence and FIR No. 6 of 2005 under the MCOC Act. The court issued rule, and by consent made it returnable forthwith. The petitions were heard together as they involved common questions of law and fact. The judgment was delivered on 5th April 2005.
Acts & Sections
- Maharashtra Control of Organised Crime Act, 1999: 3, 7
- Constitution of India: 20(1), 226
- Terrorist and Disruptive Activities (Prevention) Act, 1987: 3(5)
