Addl. SP Is Of Same Rank As SP, Former Has Power To Record Confessions U/s. 18(1) Of MCOCA – Supreme Court

A Bench of Justice DY Chandrachud and Justice Surya Kant while defining the powers of Addl. SP and SP observed –

"Section 18(1) MCOCA clearly vests those officers who are of the same rank as the SP with the power to record confessions, in addition to vesting that power with the SP. This is clearly evident from the use of the expression ―not below the rank of Superintendent of Police."

The Court further also observed, "It is our view that the expression "rank" must be understood as a class or category which encompasses multiple posts. The posts of SP, Addl. SP, and DCP all fall within the same rank as they exercise similar functions and powers and operate within similar spheres of authority. Every person within a particular rank will not be of the same seniority. Officers of the same rank may have been in service for a different number of years. At times, this may even bear on the post to which they are appointed but their rank remains undisturbed. A difference in the seniority of a particular officer is not the same as a difference in their ranks. The insignia on officers' uniforms denote, in this case, their seniority as well as their designations."

In this case, the Prosecution alleged that the Appellants were the members of an organized crime syndicate which has engaged in cheating members of the public by conducting 'Mumbai Matka.'

To explain matkas' in simple terms, those who wish to gamble place bets on numbers / playing cards. At the end of the cycle, the results are to be declared based on a random draw of numbers / playing cards and those who correctly guess the winning digits / playing cards win while the others lose. Instead of declaring the winning digits on the basis of a random draw, the organizers of the Mumbai Matka are alleged to identify the number on which the least bets are placed and declare that to be the winning digit. This was allegedly done in order to ensure that the pay-out was minimal and the profit was as large as possible.

The Prosecution further alleged the Appellants distributed the earned money to various gangsters and purchased property from the proceeds of the illegal gambling business. It was also alleged that the proceeds from the matka business were used to finance criminal gangs and the underworld dons.

FIR was registered against the Appellants upon Addl. SP raiding their gambling den for the offences under Sections 43, 147, 149, 395, 307, 353, 332, 155, 109, 324, 323 and 427 of IPC, Sections 4 and 5 of the Maharashtra Prevention of Gambling Act 1887, Section 65(e) of the Maharashtra Prohibition Act 1949 and Sections 37 and 135 of the Bombay Police Act 1951.

The Investigating Officer was of the opinion that the accused were members of an organized crime syndicate as defined in Section 2(1)(f) Maharashtra Control of Organized Crime Act 1999.

During the course of investigation, the Additional Superintendent of Police recorded the confessions made by many of the accused, including the Appellants. Statements of various persons under Section 161 Code of Criminal Procedure 1973 were also recorded.

Thereafter, the competent authority sanctioned the prosecution of the Appellants for offences under MCOCA.

The Bombay High Court had earlier dismissed the Petitions filed by the accused for quashing of the FIRs.

• The issues that were dealt with by the Court were –

i) Whether a confession recorded by an Addl. SP under Section 18 MCOCA can be proved as against the accused; and

ii) Whether the provisions of MCOCA have been validly invoked.

Senior Counsels Mr. Amit Desai, Mr. Siddharth Luthra, Mr. Abad Ponda, Mr. V. Giri, Mr. Pradeep Rai, and Mr. ANS Nadkarni appeared for the Appellants while Senior Counsel Raja Thakare appeared for the State before the Apex Court.

1^st Issue

The Apex Court referred to Section 18(1) of MCOCA which states - Notwithstanding anything in the Code or in the Indian Evidence Act, 1872, but subject to the provisions of this section, a confession made by a person before a police officer not below the rank of the Superintendent of Police and recorded by 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 admissible in 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 same case together with the accused.

The Court further also noted that Section 18(1) uses the expression 'rank', which cannot be conflated or equated with a designation or post.

The Bench also observed that on transfer, a DCP can be posed as Addl. SP and continues to be in the same rank as an SP, thus there is no basis o conclude that an Addl. SP does not fulfil the description specified in Section 18(1) MCOCA as being ―a police officer not below the rank of the Superintendent of Police.

The Court thus held that Section 18(1) clearly vests those officers who are of the same rank as the SP with the power to record confessions, in addition to vesting that power with the SP. This is clearly evident from the use of the expression ―not below the rank of Superintendent of Police.

2^nd Issue

In relation to the contention of the Appellants that the provisions for MCOCA were invalidly, invoked, the Bench noted –

"The question of whether the appellants are in fact abetting organized crime in this manner, is to be determined at the stage of trial. Similarly, the question of whether offences under the IPC would attract MCOCA in the present case is to be determined at the stage of trial and depends on the facts and circumstances of each case."

Thus, the Court dismissed the appeals.

Cause Title - Zakir Abdul Mirajkar v. The State of Maharashtra & Ors.

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