The Power of ‘No’: How Section 23 MCOCA Blocks FIRs Without Sanction

 Can a private citizen set the criminal law in motion? usually, the answer is a resounding "Yes." The principle of locus standi is foreign to criminal jurisprudence—anyone can knock on the doors of the police to report a crime.

But what happens when a special statute steps in?

In the recent ruling of Dhanraj N Asawani vs. Amarjeetsingh Mohindersingh Basi  2023 INSC 710 , the Supreme Court of India delivered a masterclass on statutory interpretation. While the case dealt with the Maharashtra Co-operative Societies Act, it provided a brilliant comparative analysis of Section 23 of the MCOCA, clarifying exactly what it takes for a special law to override the Code of Criminal Procedure (CrPC).

Here is why the difference between a "Positive Duty" and a "Negative Bar" changes everything for criminal practitioners.

Read full judgment here: Click here

The Core Conflict: "You Shall" vs. "No One Else Shall"

The central question before the Court was simple: Under Section 81(5B) of the Maharashtra Co-operative Societies Act, the Auditor shall file an FIR if they find irregularities. But does this mean a shareholder cannot file one?

To answer this, the Apex Court looked at the "Gold Standard" of statutory bars: Section 23 of the MCOCA.

The "Gold Standard" of Exclusion: Section 23 MCOCA

The Court used MCOCA to illustrate what a true exclusionary provision looks like. It pointed out that Section 23 is a fortress because it uses negative language and non-obstante clauses.

Under Section 23 of MCOCA:

1.       "Notwithstanding anything contained in the Code..." (The Non-Obstante Clause)

2.       "No information... shall be recorded..." (The Negative Expression)

3.       "No Special Court shall take cognizance..." (The Jurisdictional Bar)

The Supreme Court reasoned that the legislature uses the word "No" deliberately. It is a command that halts the general machinery of the CrPC. Without the specific high-level sanction (ADGP rank), the doors to the court are locked. This is an "Express Legal Bar."

The Verdict: Positive Duties Don't Create Monopolies

Contrasting this with the Co-operative Societies Act, the Court noted a crucial difference. Section 81(5B) says the Auditor "shall" file an FIR.

The Court held that this is a Positive Obligation. It commands the Auditor to act, but it does not forbid others from acting. It lacks the "negative" phrasing found in MCOCA or TADA.

"It would be contrary to basic principles of statutory construction to conclude that Section 81(5B) debars persons other than the auditor... It does not use any negative expression." — Hon'ble Dr. D.Y. Chandrachud, CJI

Key Takeaways for Legal Practitioners

1.       Look for the "No": When arguing that a special statute excludes the CrPC, simply showing a specific procedure isn't enough. You must demonstrate a "Negative Bar" (e.g., "No court shall take cognizance").

2.       Positive vs. Negative: A provision that says "Authority X shall do Y" is a duty, not a monopoly. It does not automatically strip private citizens of their right to file an FIR.

3.       MCOCA remains untouched: The judgment reaffirms that MCOCA’s strict barriers (requiring high-ranking sanctions) are valid and mandatory because they are explicitly exclusionary.

Conclusion

The Dhanraj N Asawani judgment serves as a critical reminder that the right to set the criminal law in motion is a powerful tool that cannot be taken away by implication. Unless the statute screams "NO" (like MCOCA), the path to justice remains open to all.

 

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