Full Judgment Text
APL 1311.doc
1/30
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.1311 OF 2018
UPS Madan .. Applicant
Versus
State of Maharashtra & Anr .. Respondents
…
Mr. D.J. Khambata, Sr. Advocate with Shardul Singh for the
applicant.
Mr.Deepak Thakare, P.P with Mr.K.V. Saste, APP for the State.
Mr.Aditya Pratap for respondent no.2.
CORAM: RANJIT V. MORE &
SMT. BHARATI H.DANGRE, JJ.
nd
DATED : 22 APRIL 2019
JUDGMENT : (Per Smt.Bharati Dangre, J)
1 By the present application, the Chief Secretary of
State of Maharashtra has invoked the jurisdiction of this Court
praying for quashing and setting aside the impugned order
passed by the learned Special Judge (under Prevention of
th
Corruption Act) for Greater Mumbai, on 25 October 2018,
thereby directing the ACB, Mumbai to investigate the complaint
filed by the Respondent no.2 under Section 156(3) of the Code
of Criminal Procedure (for short 'the Code')
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
2/30
2 We have heard learned senior counsel Shri Darius
Khambatta appearing for the applicant, learned Public
Prosecutor Shri Deepak Thakare along with Shri K.V. Saste for
the State and Shri Aditya Pratap representing the complainant/
respondent no.2.
The applicant, at the time of filing of the
application, was holding the post of Additional Chief Secretary
(Finance) of the State of Maharashtra. However, as on date, he
is posted as the Chief Secretary of the State of Maharashtra.
The applicant belongs to the IAS cadre and joined the Indian
Administrative Services in the year 1983. It is not in dispute
that he falls within the definition of public servant as defined
under the Indian Penal Code for the purpose of Prevention of
Corruption Act, 1988.
3 The grievance of the applicant revolves around the
st
complaint which is filed by the respondent no.2 on 21
February 2018 in the Special Court seeking an investigation
under Section 156(3) of the Code of Criminal Procedure by the
Maharashtra State, Anti Corruption Bureau against the
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
3/30
applicant for the alleged offences under Section 120B, 409 of
the IPC and Section 13(1)(d) of the Prevention of Corruption
Act. The said complaint was accompanied with several
documents. The complainant alleged therein that particular
land at Bandra Kurla Complex is developed by a Company
known as Indian Film Combine Pvt. Ltd as a 'Drivein Theatre'.
The allegation in the complaint is to the effect that the said
Company is developing the Driveintheatre by utilizing the 2.0
Floor Space Index (FSI) and it is also proposing to carry out the
construction of shops, hotels etc. on the said piece of land. The
complaint alleges that according to the prevailing Rules and
Regulations, it is permissible for the Company to develop the
land in issue by utilizing only 1.0 FSI and without changing
user of the said land distinct from a Driveintheatre. A positive
assertion is made in the complaint that it is the applicant who is
responsible for granting the permissions which has resulted into
the Company obtaining pecuniary advantage by violating the
norms relating to FSI and change of user in respect of the land
in question. In order to establish the said allegation, the
complainant alleges that originally for Bandra Kurla Complex,
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
4/30
FSI of 1.0 was available and thereafter, the Central Government
through Ministry of Environment and Finance issued a
th
notification on 19 February 1991 that on and from the said
date of the notification, in CRZ area, development would be
permissible only to the extent permitted by Rules/Regulations
in force as on date of the said notification and such
development would be permitted without any change in user.
The premise on which allegations are levelled in the complaint
is the MOEF notification and it is alleged that FSI of 2.0 was not
available for the land in issue and the land could be put to use
only as a Driveintheatre.
Pursuant to the directive issued by the Hon'ble Apex
Court in the case of Priyanka Srivastava Vs. State of Uttar
Pradesh , the complaint is accompanied by a supporting
th
affidavit sworn on 17 July 2018.
4 The said complaint/application preferred by the
complainant was taken up for consideration by the Special
Judge (Under the Prevention of Corruption Act) for Greater
Mumbai, and it was numbered as ACB Miscellaneous
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
5/30
Application No.238 of 2018. It is this order passed by the
th
Special Judge on 25 October 2018 which is impugned in the
present application before us. The learned Special Judge has
taken into consideration the allegation set out in the complaint
in relation to a plot of land admeasuring about 20 acres
reserved for Driveintheatre situated at Bandra (East) Mumbai
and leased to the Indian Film Combine Pvt.Ltd. The allegations
in the complaint are relied by the learned Special Judge and it
is noted that though the complainant had raised grievance
before the concerned authorities for taking action, no action
was taken. The Special Judge arrived at a conclusion that the
offence against the respondent is serious in nature and calls for
investigation in respect of the pecuniary advantage obtained by
the accused without following the notification and the rules of
development at the relevant time. In the backdrop of the
aforesaid findings recorded, the Special Judge passed the
following order :
“Accused persons granted the FSI of '2' for the land.
Accused without following the Notification and rules of
development permitted huge construction to go on with
the FSI of '2'. The FSI being used through an illegal
change of use of land from driveintheatre to that of
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
6/30
shopping mall, fivestar hotel etc. thereby giving an
illegal pecuniary gain to private developer to the tune of
thousand of crore in one of the costliest areas of
Mumbai i.e. the Bandra Kurla Complex. The petitioner
have filed complaint before concerned authorities for
taking action but no any action was taken. The offence
against respondent is serious in nature and requires
investigation in respect of pecuniary advantage to
accused by accused no.1 without following Notification
and rules of development at the relevant time”.
5 The learned Senior counsel Shri Khambatta
appearing for the applicant assails the impugned order on two
counts viz. on the merits of the matter and his attempt is to
demonstrate that the complaint is exfacie false and frivolous.
He would rely upon a series of documents to demonstrate that
the factual assertion made in the complaint is incorrect and is a
distorted version. The second count on which the impugned
order is assailed is the ground of want of sanction as as
contemplated by the Maharashtra Amendment to Section
156(3) of the Code of Criminal Procedure brought into effect by
the Maharashtra Act No.33 of 2016. In light of the said
amendment, the learned senior counsel would submit that it
was not permissible for the Magistrate to order an investigation
against the applicant except with the previous sanction under
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
7/30
Section 197 of the Code or under any other law for the time
being in force. He further submits that the respondent no.2
being conscious of this fact had approached for sanction to the
Hon'ble President of India and has asserted in the complaint
that there is a deeming sanction in light of the proviso to the
amendment to Section 156(3) of the Code as applicable to the
State of Maharashtra. As far as the factual aspects of the matter
are concerned, Shri Khambatta would submit that the MMRDA
was appointed as the planning authority for the Bandra Kurla
Complex and the planning proposals were submitted by
MMRDA to the State Government who had accorded its
approval to the General Development Control Regulations
(GDCR) for Bandra Kurla Complex (BKC). Shri Khambatta has
invited our attention to the said Regulations which reflect that
the FSI permissible for commercial development in BKC from
1971 was 2.0. He would further submit that the land in
question falls within 'E' block of the planning proposal. He
would also invite our attention to the lease deed executed
pursuant to a tender notice for period of 99 years and would
invite our attention to the various covenants of the said lease
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
8/30
deed which would reveal that the user of the land in question
was also for other activities other than the Drivein theatre and
would extend to a First Class Restaurant, Bar, Candy shop,
petrol pump etc. On the basis of the said documents placed
before us, Shri Khambatta would urge that on merits of the
matter also, the FSI of 2.0 is available and the use of
commercial activities was already contemplated in terms of the
lease deed executed in the year 1991 itself. He would thus
submit that perusal of the public documents would conclusively
demonstrate that the entire facade of the complainant is
misconceived.
Shri Khambatta would also submit that the power
under Section 156(3) conferred on a Magistrate has to be
exercised with great care and caution and time and again,
Hon'ble Apex court as well as this Court was required to take
cognizance of the blatant abuse and exercise of discretion by
the Magistrate and in light of the apprehended misuse of said
power, and a settled position of law has emerged to the effect
that the application of mind by the Magistrate while exercising
the power should be reflected in the order. A mere statement
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
9/30
that he has gone through the complaint, documents and heard
the complainant would not be sufficient. Shri Khambatta has
seriously criticized the impugned order inasmuch as he submits
that the Magistrate has merely reproduced the allegation
contained in the complaint and the impugned order lacks any
attribute application of mind by the Magistrate so much so that
he has not even cursorily gone through the documents
accompanying the complaint itself.
In light of the factual assertion, Shri Khambatta
would submit that the impugned order deserves to be quashed
and set aside as the Magistrate has directed the investigation
without any application of mind and such a trend and exercise
of power is to be highly condemned.
In the alternative, Shri Khambatta has also invited
our attention to the fact that from the year 1987 to 1999, the
applicant had no concern with MMRDA and it was only in the
year 20002002, he worked in MMRDA but was assigned to the
Project Division as a Project Director and he was then
appointed as Commissioner of MMRDA in the year 2013. In
such circumstances, he would submit that there is no material
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
10/30
placed on record by the complainant to demonstrate that the
applicant had taken any particular decision which would, in
any manner, violate the notification issued by the Ministry of
Environment and Forest or any of the Development Control
Regulation, much less the GDCR. He would also submit that
the very land has itself been a subject matter of Public Interest
Litigation (L) No.83 of 2018 filed by one Mrs.Abha Singh and
Mr.Santosh Daundkar and he informs the Court that the said
PIL has been dismissed by this Court.
6 As against the said submission, the learned counsel
for the complainant/respondent no.2 herein Mr.Aditya Pratap
who supports the impugned order and submits that the
exhaustive complaint preferred by the complainant gives the
details of the misconduct as contemplated under Section 13(2)
of the Prevention of Corruption Act. He submits that this
involves a large scale fraud and there are several persons of
high ranking and influential in position involved in the same
and it is only when the complaint would be investigated by the
police machinery, veil would be lifted. Shri Pratap would also
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
11/30
th
place reliance on the CRZ notification issued on 19 February
1991 and he submits that the applicant who was working in the
capacity of Commissioner, MMRDA was the competent
authority to grant FSI in areas under the control of MMRDA.
th
He submits that the MOEF notification dated 19 February
1991 made it imperative that the FSI admissible on the date of
notification would prevail and there would be no change of
user and on that date, except for FSI required to construct the
Driveintheatre, no other FSI was available and the land was
purported to be used only as a Driveintheatre. Shri Pratap
would positively assert that the applicant had permitted huge
construction to go on with an FSI of 2.0, being used through an
illegal change of use of land from driving theatre to that of a
Shopping Mall, 5 Star Hotels etc. thereby giving an illegal
pecuniary gain to the private developer to the tune of
thousands of crores in one of the costliest areas of Mumbai.
He would also place reliance on the NOC issued by
the Urban Development Department, Government of
th
Maharashtra on 6 August 1999 which stipulate that in CRZII
area, the development is permitted as per DCR prevailing on
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
12/30
th
19 February 1991. He would thus allege that it is the
applicant who had flouted the aforesaid orders though being
aware of the provisions of law and the existing notification.
Shri Pratap would thus allege misconduct on part of the
applicant, thereby attracting Section 13(1)(d) of the Prevention
of Corruption Act. He would also allege that the act of the
applicant would invoke and apply Section 409 of the IPC since
it is the breach of trust on the part of the applicant in granting
illegal FSI enabling the private persons to avail built up area,
many more times on the land against the one which is
permitted.
As far as the objection of obtaining sanction in light
of the Maharashtra Amendment is concerned, Shri Pratap
would submit that since the offence under reference was under
the Prevention of Corruption Act, 1988 under Section 19 of the
said Act, the complainant had preferred an application to the
President of India to accord sanction before ordering
investigation and he has placed that application on record.
th
According to Shri Pratap, the said application was made on 27
October 2017 and more than 90 days have lapsed and since no
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
13/30
reply is received from the President, relying on the proviso to
Section 156(3) of the Code of Criminal Procedure of the
Maharashtra Amendment, he submits that the sanction is
deemed to have been granted. He would also further submit
that the requirement of sanction emanates from Section 19 of
the Prevention of Corruption Act and not under Section 197 of
the Code of Criminal Procedure and for making the said
submission, he falls back on Section 4 of the Code of Criminal
Procedure.
Learned counsel Shri Aditya Pratap placed heavy
reliance on the following judgments of the Hon'ble Apex court :
1) Laksmansingh Himatsingh Vaghela Vs. Naresh Kumar
Chandrashanker Jha & Ors,
AIR 1990 SC 1976.
2 Narayana Swamy Vs. State of Karnataka and ors.
AIR 2016 (4) SC 125
3 Ajoy Archarya Vs. State Bureau of Investigation
2013 AD (SC) 125
4 Abhay Singh Chautala Vs. CBI
2011 (2) ACR 2252 (SC)
7 With the assistance of the learned counsel for the
parties, we have perused the said complaint along with its
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
14/30
annexures and we have also considered the submissions
advanced on behalf of he respective counsel. At the outset, we
must take note of the amendment in Section 156(3) inserted in
the Code of Criminal Procedure by way of Maharashtra Act
No.33 of 2016. The said amendment inserts a proviso after
subsection (3) of Section 156 which reads thus :
“Provided that, no Magistrate shall order an investigation
under this section against a person who is or was a public
servant as defined under any other law for the time being
in force, in respect of the act done by such public servant
while acting or purporting to act in the discharge of his
official duties, except with the previous sanction under
section 197 of the Code of Criminal Procedure, 1973 or
under any law for the time being in force :
Provided further that, the sanctioning authority shall
take a decision within a period of ninety days from the
date of the receipt of the proposal for sanction and in case
the sanctioning authority fails to take the decision within
the said stipulated period of ninety days, the sanction
shall be deemed to have been accorded by the sanctioning
authority”
8 Section 156 of the Code relates to the Police
Officer's power to investigate a cognizable offence and it
confers the power on the officerincharge of a police station,
who may without order of the Magistrate investigate any
cognizable case with a court having jurisdiction over the local
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
15/30
area within the limits of such station would have power to
inquire into or try. Subsection (3) of Section 156 confers a
power on the Magistrate empowered under Section 190 to
order such an investigation. Where a jurisdiction is exercised
on a complaint petition filed in terms of Section 156(3) or
Section 200 of the Code of Criminal Procedure, the Magistrate
is expected to apply his mind before summoning an accused.
The criminal law cannot be set into motion as a matter of
routine course and what is expected on the part of the
Magistrate is careful scrutiny of the evidence/material brought
on record by the complainant and to ascertain the truthfulness
of the assertions/allegations and to reach to a conclusion
whether any offence has been prima facie committed by any of
the accused. The exercise of this power by the Magistrate has
been a matter of concern for a considerable long period of time.
The Hon'ble Apex Court in case of Anil Kumar and ors
1
Versus M.K. Aiyappa, has reiterated the ambit and scope of
the power of the Magistrate in the following words :
“11 The scope of the Section 156(3) Cr.PC
came up for consideration before this Court in several
1 (2013) 10 SCC 705
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
16/30
cases. This Court in Maksud Saiyed case (supra)
examined the requirement of the application of mind by
the Magistrate before exercising jurisdiction under
Section 156(3) and held that where a jurisdiction is
exercised on a complaint filed in terms of Section 156(3)
or Section 200 Cr.P.C., the Magistrate is required to
apply his mind, in such a case, the Special
Judge/Magistrate cannot refer the matter under Section
156(3) against a public servant without a valid sanction
order. The application of mind by the Magistrate should
be reflected in the order. The mere statement that he has
gone through the complaint, documents and heard the
complainant, as such, as reflected in the order, will not
be sufficient. After going through the complaint,
documents and hearing the complainant, what weighed
with the Magistrate to order investigation under Section
156(3) Cr.P.C., should be reflected in the order, though a
detailed expression of his views is neither required nor
warranted. We have already extracted the order passed
by the learned Special Judge which, in our view, has
stated no reasons for ordering investigation.
The power conferred was examined in light of Section 19(1) of
the Public Accountability (Vigilance and Prevention of
Corruption Act, 1988), the Apex Court held that the sanction as
contemplated under Section 19(1) is a precondition for
ordering investigation against public servant under Section
156(3) of the Code even at precognizance stage. On the said
point, we deem it appropriate to refer to the observations by
their Lordships in the following words :
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
17/30
That the requirement of sanction is only procedural
in nature and hence, directory or else Section 19(3)
would be rendered otiose. We find it difficult to
accept that contention. Subsection (3) of Section 19
has an object to achieve, which applies in
circumstances where a Special Judge has already
rendered a finding, sentence or order. In such an
event, it shall not be reversed or altered by a court in
appeal, confirmation or revision on the ground of
absence of sanction. That does not mean that the
requirement to obtain sanction is not a mandatory
requirement. Once it is noticed that there was no
previous sanction, as already indicated in various
judgments referred to hereinabove, the Magistrate
cannot order investigation against a public servant
while invoking powers under Section 156(3) Cr.P.C.
The above legal position, as already indicated, has
been clearly spelt out in Paras Nath Singh and
Subramanium Swamy cases (supra).
14. Further, this Court in Criminal Appeal No. 257
of 2011 in the case of General Officer, Commanding
v. CBI and opined as follows:
“Thus, in view of the above, the law on the issue
of sanction can be summarized to the effect that
the question of sanction is of paramount
importance for protecting a public servant who
has acted in good faith while performing his
duty. In order that the public servant may not be
unnecessarily harassed on a complaint of an
unscrupulous person, it is obligatory on the part
of the executive authority to protect him….. If the
law requires sanction, and the court proceeds
against a public servant without sanction, the
public servant has a right to raise the issue of
jurisdiction as the entire action may be rendered
void abinitio.”
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
18/30
The exercise of power of the Magistrate again fell for
consideration before the Hon'ble Apex Court, this time as a
matter of serious concern. In case of Priyanka Srivastava
2
And Anr Vs. State of Uttar Pradesh and ors, Their Lordships
were constrained to reiterate the duties and the approach of the
Magistrate while exercising the powers under Section 156(3)
and reiterated that the Magistrate exercising the said power is
expected to be vigilant with regard to the nature of allegation
made in the application and not to issue directions without
proper application of mind. It was also cautioned that the said
power cannot be invoked by a litigant at his own whims to
harass others but it must be retained as a power which can be
exercised only on a complaint by a principled and a really
agreed citizen approaching the Court with clean hands and this
power should be exercised only where it could be conducive to
justice. The directives therefore came to be issued to file an
affidavit supporting the allegations and we would gainfully
refer to the observations of the Hon'ble Apex Court in
paragraph nos.30 and 31.
2 (2015) 6 SCC 287
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
19/30
30. In our considered opinion, a stage has come in
this country where Section 156(3) Cr.P.C. applications
are to be supported by an affidavit duly sworn by the
applicant who seeks the invocation of the jurisdiction of
the Magistrate. That apart, in an appropriate case, the
learned Magistrate would be well advised to verify the
truth and also can verify the veracity of the allegations.
This affidavit can make the applicant more responsible.
We are compelled to say so as such kind of applications
are being filed in a routine manner without taking any
responsibility whatsoever only to harass certain
persons. That apart, it becomes more disturbing and
alarming when one tries to pick up people who are
passing orders under a statutory provision which can
be challenged under the framework of said Act or under
Article 226 of the Constitution of India. But it cannot
be done to take undue advantage in a criminal court as
if somebody is determined to settle the scores.
31 We have already indicated that there has
to be prior applications under Section 154(1) and
154(3) while filing a petition under Section 156(3) .
Both the aspects should be clearly spelt out in the
application and necessary documents to that effect
shall be filed. The warrant for giving a direction that
an the application under Section 156(3) be supported
by an affidavit so that the person making the
application should be conscious and also endeavour to
see that no false affidavit is made. It is because once an
affidavit is found to be false, he will be liable for
prosecution in accordance with law. This will deter him
to casually invoke the authority of the Magistrate under
Section 156(3) . That apart, we have already stated that
the veracity of the same can also be verified by the
learned Magistrate, regard being had to the nature of
allegations of the case. We are compelled to say so as a
number of cases pertaining to fiscal sphere,
matrimonial dispute/family disputes, commercial
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
20/30
offences, medical negligence cases, corruption cases and
the cases where there is abnormal delay/laches in
initiating criminal prosecution, as are illustrated in
Lalita Kumari are being filed. That apart, the learned
Magistrate would also be aware of the delay in lodging
of the FIR.
9 It is in this backdrop, the State of Maharashtra has
amended and inserted the proviso to section 156(3) of the
Code. By the same amendment, Section 190 of the Code of
Criminal Procedure was also parallelly amended by inserting
identical proviso restraining the Magistrate from taking
cognizance from any offence alleged to have been committed
by a person who is or was a public servant, while acting or
purporting to act in discharge of official duty except with
previous sanction under Section 197 of the Code of Criminal
Procedure or under any law for the time being in force. By the
said amendment, a restraint has been imposed in directing an
investigation by the Magistrate by virtue of the proviso initiated
in Section 156(3) and in the power of the Magistrate taking
cognizance by the proviso inserted in Section 190. By virtue of
the said amendment, no complaint can be filed against public
offences without a valid sanction from the competent authority.
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
21/30
The object of the Maharashtra Amendment aims to protect the
public officials against false and frivolous and politically
motivated cases. The observations of the Hon'ble Apex court
which we have referred to above, are clearly indicative of the
trend of misuse of the said power in case where the complaint
is bereft of any truth, it would result in demoralizing public
officials/public servants from exercising their powers bonafidely
and it would result in the huge harassment and unless and until
the entire rigmarole of the proceedings is undergone, there can
be no solace to an honest public official who is purported to
exercise his duty fearlessly and effectively. By the amendment
inserted in the year 2016, it is not competent for a Magistrate
to order an investigation under Section 156(3) on a complaint
against the public servant in absence of any previous sanction
under Section 197 of the Code of Criminal Procedure. Shri
Pratap has submitted that he has applied for sanction to the
President of India and there is a deeming sanction.
10 We have noted that the applicant is presently
working as a Chief Secretary of the State of Maharashtra and he
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
22/30
came to be transferred from the post of Commissioner, MMRDA
to the post of Additional Chief Secretary, Finance Department,
th
by an order dated 5 May 2018 passed by Government
Administrative Department under the Maharashtra Government
Servants Regulation of Transfers and Prevention of Delay in
Discharge of Official Duties Act, 2005. Shri Pratap has himself
th
tendered the said order dated 5 May 2018 in the compilation
submitted by him. The said order is reflective of the fact that
the applicant is in the Indian Administrative Service. As an
officer of the Indian Administrative cadre, appointing authority
of the applicant is the President of India. However, when the
applicant is appointed in connection with the affairs of the
State, in such contingency, he worked under the control of the
State Government and the applicant in the said capacity cannot
be removed from his office save by or with the sanction of the
State Government and it is the State Government which is the
appropriate authority from whom the contemplated sanction
ought to be obtained. The applicant was holding the post of
Commissioner of MMRDA from 2013 . The MMRDA is a body
of Government of Maharashtra which is responsible for
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
23/30
infrastructure development of the Mumbai Metropolitan
Region. It is the body which is set up under the Mumbai
Metropolitan Region Development Authority Act, 1974 as the
Apex body for planning and coordination of development
activities in the region. MMRDA is thus a functionary of the
State Government and the applicant was holding charge of
Commissioner of the MMDRA and exercising the power
conferred on him. There is no dispute that the applicant is a
public servant and in such circumstances, the first proviso of
Section 156(3) is attracted.
Reliance placed by Shri Pratap on the judgment is
not of any assistance to him since the said judgment do not take
into consideration the Maharashtra Amendment to Section
156(3) of the Code of Criminal Procedure. The said judgments
are delivered in the context of Section 197 and we need not
take into consideration the said judgments which lay down a
proposition of law to the effect as to who is the sanctioning
authority. In case of Laksmansingh Vaghela Vs. Naresh
3
Kumar C. Jha & ors , the issue before the Hon'ble Apex Court
3 AIR 1990 SC 1976
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
24/30
was when the offence can be said to be the one committed
while acting or purporting to act in discharge of his official duty
and the Apex Court held that Section 197 of the Code of
Criminal Procedure clearly intends to draw a line between
public servant and to provide that only in case of a higher rank,
the sanction of the Government to their prosecution would be
necessary. The words “removable from office” occurring in
Section 197 also fell for interpretation and it was held that it
signified removal from the office he his holding and thus the
authority was defined as an authority under whom the officer is
serving and who is competent to terminate his services. The
issue involved was also whether in case of a person/accused
who is in service and pay of the local authority whether his
status would stand altered.
11 In case of Ajoy Acharya Vs. State Bureau of
4
Investigation against Economic Offence , the Hon'ble Apex
Court was dealing with an accused charged with Sections 409,
406, 467, 468 and 120B and 13(1)(d) and 13(2) of the
4 2013X
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
25/30
Prevention of Corruption Act who came to be nominated as
Director on the Madhya Pradesh Industrial Development
Corporation and investigation was ordered into the affairs of
the said Corporation by the State Government. The appellant
before the Appellate Court was an IAS officer of 1976 batch and
while holding the charge of post of Commissioner of Industries
of State of Madhya Pradesh, he came to be nominated as
Director of MPSIDC. He continued to hold the post till the year
1998 and since then, he came to be transferred from the post of
Commissioner of Industries, he ceased to be a member of the
Board of Directors of MPSIDC. The question which fell for
consideration before the Apex Court was when an accused was
holding plurality of offices, each of which makes him a public
servant, where a sanction is essential from each of the
competent authority and it was held that the sanction would be
necessary only from the competent authority of the office which
he had allegedly misused. Conclusively, it was held in the facts
of the case that since the appellant was not holding the public
office which he is alleged to have misused when the first
chargesheet was filed, there was no need to obtain any
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
26/30
sanction before proceeding to prosecute him for the offences
alleged. Now the similar issue do not arise at all. We fail to
understand how the authoritative pronouncement by the
Hon'ble Apex Court in the aforesaid judgment is of any succor
to the learned counsel representing the complainant. Here is a
clean and clear case where the applicant was working as
Commissioner of MMRDA which is a wing of the Government
and later on, transferred to the post of Additional Chief
Secretary of State of Maharashtra. The impugned order is
th
passed by the Magistrate on 25 October 2018 when he was
holding the post of Additional Chief Secretary (Finance), State
of Maharashtra. It was therefore incumbent upon the
Magistrate to abide by the proviso inserted in Section 156(3) by
the Maharashtra Amendment and without obtaining the said
sanction, the investigation could not have been ordered. The
impugned order which is passed in ignorance of the said
provision is, therefore, nonest and liable to be struck down.
12 We have also examined the merits of the complaint
preferred by the respondent no.2. The core allegation in the
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
27/30
said complaint in relation in relation to the FSI and it is
projected in the said complaint that the present applicant
permitted huge construction with an FSI of 2.0 and this FSI was
being sought to be used through an illegal change of use of land
from 'driveintheatre' to that of shopping mall, Five Star Hotel
etc and this resulted in illegal pecuniary gain to the private
developers to the tune of thousands of crores in a prime locality
in the financial capital of the country. The complaint has
further alleged that the Coastal Regulation Zone Notification
1991 had clearly indicated that all development activities
proposed to be taken in the area will have to adhere to the
th
norms as existing on 19 February 1991 including the norms
pertaining to FSI. It is alleged that the land under Reference is
in CRZ area and necessarily had to be developed as per the
th
ruling prevailing on 19 February 1991 and despite being
aware of this legal scenario when there was no FSI of '2.0'
available for a driveintheatre and the permission was only to
construct a driveintheatre, the availment of FSI of 2.0 FSI is
illegal. It is therefore, alleged that the applicant has committed
an offence of criminal misconduct by according large pecuniary
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
28/30
favour to the accused nos.2 and 3 and therefore, offence under
Section 13(1)(d) of the Prevention of Corruption Act has been
committed.
Though we are prima facie satisfied and expressly
observed in the above paragraphs that the investigation could
not have been ordered by the Magistrate in absence of the
compliance of the proviso inserted in subsection (3) of Section
156 of the Code of Criminal Procedure as applicable to the
State of Maharashtra, we have also considered the merits of the
allegation contained in the complaint. The entire case as set
out in the complaint is that the said land at Bandra Kurla
Complex to which a reference has been made was being
developed as 'driveintheatre' by using 2.0 FSI, whereas what
was permissible was an FSI of 1.0. The factual disclosure reveal
that the Urban Development Department itself had clarified its
decision to confer the FSI of 2.0 and on the relevant date of the
th
MOEF notification, the existing FSI was permitted. As on 19
February 1991, the GDCR was applicable and for commercial
development, it permitted an FSI of 2.0. The lease deed dated
th
19 February 1991 in favour of the Indian Film Combine
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
29/30
Pvt.Ltd is also placed on record which would establish that the
user of the land in issue was for activities other than which is a
driveintheatre and it permitted its user as restaurant, bar,
th
petrol pump etc. A communication dated 15 July 1999 issued
by the Collector is also placed on record which contemplates
th
the said user. Further, an order is issued on 19 August 1999
by the State Government in terms of the DCR of 1991 and it is
applicable for redevelopment of driveintheatre also clarify that
in redevelopment proposal hotel user shall be permissible,
subject to the relevant rules and regulations and the
redevelopment would not amount to deviation of land user
proposal of the Bandra Kurla Complex. In such circumstances,
since on the relevant date, both FSI 2.0 and commercial user
was admissible and permissible, we find that the complaint is
misfounded and is nothing but a distortion of the factual and
legal position with regard to the land in question in issue as on
the date of the MOEF Notification. In such circumstances, the
impugned order passed by the authority passed by the Special
Judge proceeding on the basis of the complaint, without
verification or application of mind to the facts placed before
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
30/30
him, in light of the documents produced by the complainant
himself, in our view cannot be sustained in law and the
impugned order, therefore, deserves to be quashed and set
aside.
For the reasons recorded above, Criminal
th
Application is allowed. The impugned order dated 25 October
2018 passed by the learned Special Judge (Under the
Prevention of Corruption Act) for Greater Mumbai, at Mumbai
in ACB Miscellaneous Application No.258 of 2018 is quashed
and set aside.
No order as to costs.
(SMT. BHARATI H. DANGRE, J.) (RANJIT V. MORE J.)
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
1/30
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.1311 OF 2018
UPS Madan .. Applicant
Versus
State of Maharashtra & Anr .. Respondents
…
Mr. D.J. Khambata, Sr. Advocate with Shardul Singh for the
applicant.
Mr.Deepak Thakare, P.P with Mr.K.V. Saste, APP for the State.
Mr.Aditya Pratap for respondent no.2.
CORAM: RANJIT V. MORE &
SMT. BHARATI H.DANGRE, JJ.
nd
DATED : 22 APRIL 2019
JUDGMENT : (Per Smt.Bharati Dangre, J)
1 By the present application, the Chief Secretary of
State of Maharashtra has invoked the jurisdiction of this Court
praying for quashing and setting aside the impugned order
passed by the learned Special Judge (under Prevention of
th
Corruption Act) for Greater Mumbai, on 25 October 2018,
thereby directing the ACB, Mumbai to investigate the complaint
filed by the Respondent no.2 under Section 156(3) of the Code
of Criminal Procedure (for short 'the Code')
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
2/30
2 We have heard learned senior counsel Shri Darius
Khambatta appearing for the applicant, learned Public
Prosecutor Shri Deepak Thakare along with Shri K.V. Saste for
the State and Shri Aditya Pratap representing the complainant/
respondent no.2.
The applicant, at the time of filing of the
application, was holding the post of Additional Chief Secretary
(Finance) of the State of Maharashtra. However, as on date, he
is posted as the Chief Secretary of the State of Maharashtra.
The applicant belongs to the IAS cadre and joined the Indian
Administrative Services in the year 1983. It is not in dispute
that he falls within the definition of public servant as defined
under the Indian Penal Code for the purpose of Prevention of
Corruption Act, 1988.
3 The grievance of the applicant revolves around the
st
complaint which is filed by the respondent no.2 on 21
February 2018 in the Special Court seeking an investigation
under Section 156(3) of the Code of Criminal Procedure by the
Maharashtra State, Anti Corruption Bureau against the
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
3/30
applicant for the alleged offences under Section 120B, 409 of
the IPC and Section 13(1)(d) of the Prevention of Corruption
Act. The said complaint was accompanied with several
documents. The complainant alleged therein that particular
land at Bandra Kurla Complex is developed by a Company
known as Indian Film Combine Pvt. Ltd as a 'Drivein Theatre'.
The allegation in the complaint is to the effect that the said
Company is developing the Driveintheatre by utilizing the 2.0
Floor Space Index (FSI) and it is also proposing to carry out the
construction of shops, hotels etc. on the said piece of land. The
complaint alleges that according to the prevailing Rules and
Regulations, it is permissible for the Company to develop the
land in issue by utilizing only 1.0 FSI and without changing
user of the said land distinct from a Driveintheatre. A positive
assertion is made in the complaint that it is the applicant who is
responsible for granting the permissions which has resulted into
the Company obtaining pecuniary advantage by violating the
norms relating to FSI and change of user in respect of the land
in question. In order to establish the said allegation, the
complainant alleges that originally for Bandra Kurla Complex,
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
4/30
FSI of 1.0 was available and thereafter, the Central Government
through Ministry of Environment and Finance issued a
th
notification on 19 February 1991 that on and from the said
date of the notification, in CRZ area, development would be
permissible only to the extent permitted by Rules/Regulations
in force as on date of the said notification and such
development would be permitted without any change in user.
The premise on which allegations are levelled in the complaint
is the MOEF notification and it is alleged that FSI of 2.0 was not
available for the land in issue and the land could be put to use
only as a Driveintheatre.
Pursuant to the directive issued by the Hon'ble Apex
Court in the case of Priyanka Srivastava Vs. State of Uttar
Pradesh , the complaint is accompanied by a supporting
th
affidavit sworn on 17 July 2018.
4 The said complaint/application preferred by the
complainant was taken up for consideration by the Special
Judge (Under the Prevention of Corruption Act) for Greater
Mumbai, and it was numbered as ACB Miscellaneous
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
5/30
Application No.238 of 2018. It is this order passed by the
th
Special Judge on 25 October 2018 which is impugned in the
present application before us. The learned Special Judge has
taken into consideration the allegation set out in the complaint
in relation to a plot of land admeasuring about 20 acres
reserved for Driveintheatre situated at Bandra (East) Mumbai
and leased to the Indian Film Combine Pvt.Ltd. The allegations
in the complaint are relied by the learned Special Judge and it
is noted that though the complainant had raised grievance
before the concerned authorities for taking action, no action
was taken. The Special Judge arrived at a conclusion that the
offence against the respondent is serious in nature and calls for
investigation in respect of the pecuniary advantage obtained by
the accused without following the notification and the rules of
development at the relevant time. In the backdrop of the
aforesaid findings recorded, the Special Judge passed the
following order :
“Accused persons granted the FSI of '2' for the land.
Accused without following the Notification and rules of
development permitted huge construction to go on with
the FSI of '2'. The FSI being used through an illegal
change of use of land from driveintheatre to that of
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
6/30
shopping mall, fivestar hotel etc. thereby giving an
illegal pecuniary gain to private developer to the tune of
thousand of crore in one of the costliest areas of
Mumbai i.e. the Bandra Kurla Complex. The petitioner
have filed complaint before concerned authorities for
taking action but no any action was taken. The offence
against respondent is serious in nature and requires
investigation in respect of pecuniary advantage to
accused by accused no.1 without following Notification
and rules of development at the relevant time”.
5 The learned Senior counsel Shri Khambatta
appearing for the applicant assails the impugned order on two
counts viz. on the merits of the matter and his attempt is to
demonstrate that the complaint is exfacie false and frivolous.
He would rely upon a series of documents to demonstrate that
the factual assertion made in the complaint is incorrect and is a
distorted version. The second count on which the impugned
order is assailed is the ground of want of sanction as as
contemplated by the Maharashtra Amendment to Section
156(3) of the Code of Criminal Procedure brought into effect by
the Maharashtra Act No.33 of 2016. In light of the said
amendment, the learned senior counsel would submit that it
was not permissible for the Magistrate to order an investigation
against the applicant except with the previous sanction under
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
7/30
Section 197 of the Code or under any other law for the time
being in force. He further submits that the respondent no.2
being conscious of this fact had approached for sanction to the
Hon'ble President of India and has asserted in the complaint
that there is a deeming sanction in light of the proviso to the
amendment to Section 156(3) of the Code as applicable to the
State of Maharashtra. As far as the factual aspects of the matter
are concerned, Shri Khambatta would submit that the MMRDA
was appointed as the planning authority for the Bandra Kurla
Complex and the planning proposals were submitted by
MMRDA to the State Government who had accorded its
approval to the General Development Control Regulations
(GDCR) for Bandra Kurla Complex (BKC). Shri Khambatta has
invited our attention to the said Regulations which reflect that
the FSI permissible for commercial development in BKC from
1971 was 2.0. He would further submit that the land in
question falls within 'E' block of the planning proposal. He
would also invite our attention to the lease deed executed
pursuant to a tender notice for period of 99 years and would
invite our attention to the various covenants of the said lease
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
8/30
deed which would reveal that the user of the land in question
was also for other activities other than the Drivein theatre and
would extend to a First Class Restaurant, Bar, Candy shop,
petrol pump etc. On the basis of the said documents placed
before us, Shri Khambatta would urge that on merits of the
matter also, the FSI of 2.0 is available and the use of
commercial activities was already contemplated in terms of the
lease deed executed in the year 1991 itself. He would thus
submit that perusal of the public documents would conclusively
demonstrate that the entire facade of the complainant is
misconceived.
Shri Khambatta would also submit that the power
under Section 156(3) conferred on a Magistrate has to be
exercised with great care and caution and time and again,
Hon'ble Apex court as well as this Court was required to take
cognizance of the blatant abuse and exercise of discretion by
the Magistrate and in light of the apprehended misuse of said
power, and a settled position of law has emerged to the effect
that the application of mind by the Magistrate while exercising
the power should be reflected in the order. A mere statement
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
9/30
that he has gone through the complaint, documents and heard
the complainant would not be sufficient. Shri Khambatta has
seriously criticized the impugned order inasmuch as he submits
that the Magistrate has merely reproduced the allegation
contained in the complaint and the impugned order lacks any
attribute application of mind by the Magistrate so much so that
he has not even cursorily gone through the documents
accompanying the complaint itself.
In light of the factual assertion, Shri Khambatta
would submit that the impugned order deserves to be quashed
and set aside as the Magistrate has directed the investigation
without any application of mind and such a trend and exercise
of power is to be highly condemned.
In the alternative, Shri Khambatta has also invited
our attention to the fact that from the year 1987 to 1999, the
applicant had no concern with MMRDA and it was only in the
year 20002002, he worked in MMRDA but was assigned to the
Project Division as a Project Director and he was then
appointed as Commissioner of MMRDA in the year 2013. In
such circumstances, he would submit that there is no material
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
10/30
placed on record by the complainant to demonstrate that the
applicant had taken any particular decision which would, in
any manner, violate the notification issued by the Ministry of
Environment and Forest or any of the Development Control
Regulation, much less the GDCR. He would also submit that
the very land has itself been a subject matter of Public Interest
Litigation (L) No.83 of 2018 filed by one Mrs.Abha Singh and
Mr.Santosh Daundkar and he informs the Court that the said
PIL has been dismissed by this Court.
6 As against the said submission, the learned counsel
for the complainant/respondent no.2 herein Mr.Aditya Pratap
who supports the impugned order and submits that the
exhaustive complaint preferred by the complainant gives the
details of the misconduct as contemplated under Section 13(2)
of the Prevention of Corruption Act. He submits that this
involves a large scale fraud and there are several persons of
high ranking and influential in position involved in the same
and it is only when the complaint would be investigated by the
police machinery, veil would be lifted. Shri Pratap would also
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
11/30
th
place reliance on the CRZ notification issued on 19 February
1991 and he submits that the applicant who was working in the
capacity of Commissioner, MMRDA was the competent
authority to grant FSI in areas under the control of MMRDA.
th
He submits that the MOEF notification dated 19 February
1991 made it imperative that the FSI admissible on the date of
notification would prevail and there would be no change of
user and on that date, except for FSI required to construct the
Driveintheatre, no other FSI was available and the land was
purported to be used only as a Driveintheatre. Shri Pratap
would positively assert that the applicant had permitted huge
construction to go on with an FSI of 2.0, being used through an
illegal change of use of land from driving theatre to that of a
Shopping Mall, 5 Star Hotels etc. thereby giving an illegal
pecuniary gain to the private developer to the tune of
thousands of crores in one of the costliest areas of Mumbai.
He would also place reliance on the NOC issued by
the Urban Development Department, Government of
th
Maharashtra on 6 August 1999 which stipulate that in CRZII
area, the development is permitted as per DCR prevailing on
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
12/30
th
19 February 1991. He would thus allege that it is the
applicant who had flouted the aforesaid orders though being
aware of the provisions of law and the existing notification.
Shri Pratap would thus allege misconduct on part of the
applicant, thereby attracting Section 13(1)(d) of the Prevention
of Corruption Act. He would also allege that the act of the
applicant would invoke and apply Section 409 of the IPC since
it is the breach of trust on the part of the applicant in granting
illegal FSI enabling the private persons to avail built up area,
many more times on the land against the one which is
permitted.
As far as the objection of obtaining sanction in light
of the Maharashtra Amendment is concerned, Shri Pratap
would submit that since the offence under reference was under
the Prevention of Corruption Act, 1988 under Section 19 of the
said Act, the complainant had preferred an application to the
President of India to accord sanction before ordering
investigation and he has placed that application on record.
th
According to Shri Pratap, the said application was made on 27
October 2017 and more than 90 days have lapsed and since no
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
13/30
reply is received from the President, relying on the proviso to
Section 156(3) of the Code of Criminal Procedure of the
Maharashtra Amendment, he submits that the sanction is
deemed to have been granted. He would also further submit
that the requirement of sanction emanates from Section 19 of
the Prevention of Corruption Act and not under Section 197 of
the Code of Criminal Procedure and for making the said
submission, he falls back on Section 4 of the Code of Criminal
Procedure.
Learned counsel Shri Aditya Pratap placed heavy
reliance on the following judgments of the Hon'ble Apex court :
1) Laksmansingh Himatsingh Vaghela Vs. Naresh Kumar
Chandrashanker Jha & Ors,
AIR 1990 SC 1976.
2 Narayana Swamy Vs. State of Karnataka and ors.
AIR 2016 (4) SC 125
3 Ajoy Archarya Vs. State Bureau of Investigation
2013 AD (SC) 125
4 Abhay Singh Chautala Vs. CBI
2011 (2) ACR 2252 (SC)
7 With the assistance of the learned counsel for the
parties, we have perused the said complaint along with its
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
14/30
annexures and we have also considered the submissions
advanced on behalf of he respective counsel. At the outset, we
must take note of the amendment in Section 156(3) inserted in
the Code of Criminal Procedure by way of Maharashtra Act
No.33 of 2016. The said amendment inserts a proviso after
subsection (3) of Section 156 which reads thus :
“Provided that, no Magistrate shall order an investigation
under this section against a person who is or was a public
servant as defined under any other law for the time being
in force, in respect of the act done by such public servant
while acting or purporting to act in the discharge of his
official duties, except with the previous sanction under
section 197 of the Code of Criminal Procedure, 1973 or
under any law for the time being in force :
Provided further that, the sanctioning authority shall
take a decision within a period of ninety days from the
date of the receipt of the proposal for sanction and in case
the sanctioning authority fails to take the decision within
the said stipulated period of ninety days, the sanction
shall be deemed to have been accorded by the sanctioning
authority”
8 Section 156 of the Code relates to the Police
Officer's power to investigate a cognizable offence and it
confers the power on the officerincharge of a police station,
who may without order of the Magistrate investigate any
cognizable case with a court having jurisdiction over the local
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
15/30
area within the limits of such station would have power to
inquire into or try. Subsection (3) of Section 156 confers a
power on the Magistrate empowered under Section 190 to
order such an investigation. Where a jurisdiction is exercised
on a complaint petition filed in terms of Section 156(3) or
Section 200 of the Code of Criminal Procedure, the Magistrate
is expected to apply his mind before summoning an accused.
The criminal law cannot be set into motion as a matter of
routine course and what is expected on the part of the
Magistrate is careful scrutiny of the evidence/material brought
on record by the complainant and to ascertain the truthfulness
of the assertions/allegations and to reach to a conclusion
whether any offence has been prima facie committed by any of
the accused. The exercise of this power by the Magistrate has
been a matter of concern for a considerable long period of time.
The Hon'ble Apex Court in case of Anil Kumar and ors
1
Versus M.K. Aiyappa, has reiterated the ambit and scope of
the power of the Magistrate in the following words :
“11 The scope of the Section 156(3) Cr.PC
came up for consideration before this Court in several
1 (2013) 10 SCC 705
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
16/30
cases. This Court in Maksud Saiyed case (supra)
examined the requirement of the application of mind by
the Magistrate before exercising jurisdiction under
Section 156(3) and held that where a jurisdiction is
exercised on a complaint filed in terms of Section 156(3)
or Section 200 Cr.P.C., the Magistrate is required to
apply his mind, in such a case, the Special
Judge/Magistrate cannot refer the matter under Section
156(3) against a public servant without a valid sanction
order. The application of mind by the Magistrate should
be reflected in the order. The mere statement that he has
gone through the complaint, documents and heard the
complainant, as such, as reflected in the order, will not
be sufficient. After going through the complaint,
documents and hearing the complainant, what weighed
with the Magistrate to order investigation under Section
156(3) Cr.P.C., should be reflected in the order, though a
detailed expression of his views is neither required nor
warranted. We have already extracted the order passed
by the learned Special Judge which, in our view, has
stated no reasons for ordering investigation.
The power conferred was examined in light of Section 19(1) of
the Public Accountability (Vigilance and Prevention of
Corruption Act, 1988), the Apex Court held that the sanction as
contemplated under Section 19(1) is a precondition for
ordering investigation against public servant under Section
156(3) of the Code even at precognizance stage. On the said
point, we deem it appropriate to refer to the observations by
their Lordships in the following words :
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
17/30
That the requirement of sanction is only procedural
in nature and hence, directory or else Section 19(3)
would be rendered otiose. We find it difficult to
accept that contention. Subsection (3) of Section 19
has an object to achieve, which applies in
circumstances where a Special Judge has already
rendered a finding, sentence or order. In such an
event, it shall not be reversed or altered by a court in
appeal, confirmation or revision on the ground of
absence of sanction. That does not mean that the
requirement to obtain sanction is not a mandatory
requirement. Once it is noticed that there was no
previous sanction, as already indicated in various
judgments referred to hereinabove, the Magistrate
cannot order investigation against a public servant
while invoking powers under Section 156(3) Cr.P.C.
The above legal position, as already indicated, has
been clearly spelt out in Paras Nath Singh and
Subramanium Swamy cases (supra).
14. Further, this Court in Criminal Appeal No. 257
of 2011 in the case of General Officer, Commanding
v. CBI and opined as follows:
“Thus, in view of the above, the law on the issue
of sanction can be summarized to the effect that
the question of sanction is of paramount
importance for protecting a public servant who
has acted in good faith while performing his
duty. In order that the public servant may not be
unnecessarily harassed on a complaint of an
unscrupulous person, it is obligatory on the part
of the executive authority to protect him….. If the
law requires sanction, and the court proceeds
against a public servant without sanction, the
public servant has a right to raise the issue of
jurisdiction as the entire action may be rendered
void abinitio.”
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
18/30
The exercise of power of the Magistrate again fell for
consideration before the Hon'ble Apex Court, this time as a
matter of serious concern. In case of Priyanka Srivastava
2
And Anr Vs. State of Uttar Pradesh and ors, Their Lordships
were constrained to reiterate the duties and the approach of the
Magistrate while exercising the powers under Section 156(3)
and reiterated that the Magistrate exercising the said power is
expected to be vigilant with regard to the nature of allegation
made in the application and not to issue directions without
proper application of mind. It was also cautioned that the said
power cannot be invoked by a litigant at his own whims to
harass others but it must be retained as a power which can be
exercised only on a complaint by a principled and a really
agreed citizen approaching the Court with clean hands and this
power should be exercised only where it could be conducive to
justice. The directives therefore came to be issued to file an
affidavit supporting the allegations and we would gainfully
refer to the observations of the Hon'ble Apex Court in
paragraph nos.30 and 31.
2 (2015) 6 SCC 287
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
19/30
30. In our considered opinion, a stage has come in
this country where Section 156(3) Cr.P.C. applications
are to be supported by an affidavit duly sworn by the
applicant who seeks the invocation of the jurisdiction of
the Magistrate. That apart, in an appropriate case, the
learned Magistrate would be well advised to verify the
truth and also can verify the veracity of the allegations.
This affidavit can make the applicant more responsible.
We are compelled to say so as such kind of applications
are being filed in a routine manner without taking any
responsibility whatsoever only to harass certain
persons. That apart, it becomes more disturbing and
alarming when one tries to pick up people who are
passing orders under a statutory provision which can
be challenged under the framework of said Act or under
Article 226 of the Constitution of India. But it cannot
be done to take undue advantage in a criminal court as
if somebody is determined to settle the scores.
31 We have already indicated that there has
to be prior applications under Section 154(1) and
154(3) while filing a petition under Section 156(3) .
Both the aspects should be clearly spelt out in the
application and necessary documents to that effect
shall be filed. The warrant for giving a direction that
an the application under Section 156(3) be supported
by an affidavit so that the person making the
application should be conscious and also endeavour to
see that no false affidavit is made. It is because once an
affidavit is found to be false, he will be liable for
prosecution in accordance with law. This will deter him
to casually invoke the authority of the Magistrate under
Section 156(3) . That apart, we have already stated that
the veracity of the same can also be verified by the
learned Magistrate, regard being had to the nature of
allegations of the case. We are compelled to say so as a
number of cases pertaining to fiscal sphere,
matrimonial dispute/family disputes, commercial
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
20/30
offences, medical negligence cases, corruption cases and
the cases where there is abnormal delay/laches in
initiating criminal prosecution, as are illustrated in
Lalita Kumari are being filed. That apart, the learned
Magistrate would also be aware of the delay in lodging
of the FIR.
9 It is in this backdrop, the State of Maharashtra has
amended and inserted the proviso to section 156(3) of the
Code. By the same amendment, Section 190 of the Code of
Criminal Procedure was also parallelly amended by inserting
identical proviso restraining the Magistrate from taking
cognizance from any offence alleged to have been committed
by a person who is or was a public servant, while acting or
purporting to act in discharge of official duty except with
previous sanction under Section 197 of the Code of Criminal
Procedure or under any law for the time being in force. By the
said amendment, a restraint has been imposed in directing an
investigation by the Magistrate by virtue of the proviso initiated
in Section 156(3) and in the power of the Magistrate taking
cognizance by the proviso inserted in Section 190. By virtue of
the said amendment, no complaint can be filed against public
offences without a valid sanction from the competent authority.
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
21/30
The object of the Maharashtra Amendment aims to protect the
public officials against false and frivolous and politically
motivated cases. The observations of the Hon'ble Apex court
which we have referred to above, are clearly indicative of the
trend of misuse of the said power in case where the complaint
is bereft of any truth, it would result in demoralizing public
officials/public servants from exercising their powers bonafidely
and it would result in the huge harassment and unless and until
the entire rigmarole of the proceedings is undergone, there can
be no solace to an honest public official who is purported to
exercise his duty fearlessly and effectively. By the amendment
inserted in the year 2016, it is not competent for a Magistrate
to order an investigation under Section 156(3) on a complaint
against the public servant in absence of any previous sanction
under Section 197 of the Code of Criminal Procedure. Shri
Pratap has submitted that he has applied for sanction to the
President of India and there is a deeming sanction.
10 We have noted that the applicant is presently
working as a Chief Secretary of the State of Maharashtra and he
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
22/30
came to be transferred from the post of Commissioner, MMRDA
to the post of Additional Chief Secretary, Finance Department,
th
by an order dated 5 May 2018 passed by Government
Administrative Department under the Maharashtra Government
Servants Regulation of Transfers and Prevention of Delay in
Discharge of Official Duties Act, 2005. Shri Pratap has himself
th
tendered the said order dated 5 May 2018 in the compilation
submitted by him. The said order is reflective of the fact that
the applicant is in the Indian Administrative Service. As an
officer of the Indian Administrative cadre, appointing authority
of the applicant is the President of India. However, when the
applicant is appointed in connection with the affairs of the
State, in such contingency, he worked under the control of the
State Government and the applicant in the said capacity cannot
be removed from his office save by or with the sanction of the
State Government and it is the State Government which is the
appropriate authority from whom the contemplated sanction
ought to be obtained. The applicant was holding the post of
Commissioner of MMRDA from 2013 . The MMRDA is a body
of Government of Maharashtra which is responsible for
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
23/30
infrastructure development of the Mumbai Metropolitan
Region. It is the body which is set up under the Mumbai
Metropolitan Region Development Authority Act, 1974 as the
Apex body for planning and coordination of development
activities in the region. MMRDA is thus a functionary of the
State Government and the applicant was holding charge of
Commissioner of the MMDRA and exercising the power
conferred on him. There is no dispute that the applicant is a
public servant and in such circumstances, the first proviso of
Section 156(3) is attracted.
Reliance placed by Shri Pratap on the judgment is
not of any assistance to him since the said judgment do not take
into consideration the Maharashtra Amendment to Section
156(3) of the Code of Criminal Procedure. The said judgments
are delivered in the context of Section 197 and we need not
take into consideration the said judgments which lay down a
proposition of law to the effect as to who is the sanctioning
authority. In case of Laksmansingh Vaghela Vs. Naresh
3
Kumar C. Jha & ors , the issue before the Hon'ble Apex Court
3 AIR 1990 SC 1976
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
24/30
was when the offence can be said to be the one committed
while acting or purporting to act in discharge of his official duty
and the Apex Court held that Section 197 of the Code of
Criminal Procedure clearly intends to draw a line between
public servant and to provide that only in case of a higher rank,
the sanction of the Government to their prosecution would be
necessary. The words “removable from office” occurring in
Section 197 also fell for interpretation and it was held that it
signified removal from the office he his holding and thus the
authority was defined as an authority under whom the officer is
serving and who is competent to terminate his services. The
issue involved was also whether in case of a person/accused
who is in service and pay of the local authority whether his
status would stand altered.
11 In case of Ajoy Acharya Vs. State Bureau of
4
Investigation against Economic Offence , the Hon'ble Apex
Court was dealing with an accused charged with Sections 409,
406, 467, 468 and 120B and 13(1)(d) and 13(2) of the
4 2013X
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
25/30
Prevention of Corruption Act who came to be nominated as
Director on the Madhya Pradesh Industrial Development
Corporation and investigation was ordered into the affairs of
the said Corporation by the State Government. The appellant
before the Appellate Court was an IAS officer of 1976 batch and
while holding the charge of post of Commissioner of Industries
of State of Madhya Pradesh, he came to be nominated as
Director of MPSIDC. He continued to hold the post till the year
1998 and since then, he came to be transferred from the post of
Commissioner of Industries, he ceased to be a member of the
Board of Directors of MPSIDC. The question which fell for
consideration before the Apex Court was when an accused was
holding plurality of offices, each of which makes him a public
servant, where a sanction is essential from each of the
competent authority and it was held that the sanction would be
necessary only from the competent authority of the office which
he had allegedly misused. Conclusively, it was held in the facts
of the case that since the appellant was not holding the public
office which he is alleged to have misused when the first
chargesheet was filed, there was no need to obtain any
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
26/30
sanction before proceeding to prosecute him for the offences
alleged. Now the similar issue do not arise at all. We fail to
understand how the authoritative pronouncement by the
Hon'ble Apex Court in the aforesaid judgment is of any succor
to the learned counsel representing the complainant. Here is a
clean and clear case where the applicant was working as
Commissioner of MMRDA which is a wing of the Government
and later on, transferred to the post of Additional Chief
Secretary of State of Maharashtra. The impugned order is
th
passed by the Magistrate on 25 October 2018 when he was
holding the post of Additional Chief Secretary (Finance), State
of Maharashtra. It was therefore incumbent upon the
Magistrate to abide by the proviso inserted in Section 156(3) by
the Maharashtra Amendment and without obtaining the said
sanction, the investigation could not have been ordered. The
impugned order which is passed in ignorance of the said
provision is, therefore, nonest and liable to be struck down.
12 We have also examined the merits of the complaint
preferred by the respondent no.2. The core allegation in the
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
27/30
said complaint in relation in relation to the FSI and it is
projected in the said complaint that the present applicant
permitted huge construction with an FSI of 2.0 and this FSI was
being sought to be used through an illegal change of use of land
from 'driveintheatre' to that of shopping mall, Five Star Hotel
etc and this resulted in illegal pecuniary gain to the private
developers to the tune of thousands of crores in a prime locality
in the financial capital of the country. The complaint has
further alleged that the Coastal Regulation Zone Notification
1991 had clearly indicated that all development activities
proposed to be taken in the area will have to adhere to the
th
norms as existing on 19 February 1991 including the norms
pertaining to FSI. It is alleged that the land under Reference is
in CRZ area and necessarily had to be developed as per the
th
ruling prevailing on 19 February 1991 and despite being
aware of this legal scenario when there was no FSI of '2.0'
available for a driveintheatre and the permission was only to
construct a driveintheatre, the availment of FSI of 2.0 FSI is
illegal. It is therefore, alleged that the applicant has committed
an offence of criminal misconduct by according large pecuniary
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
28/30
favour to the accused nos.2 and 3 and therefore, offence under
Section 13(1)(d) of the Prevention of Corruption Act has been
committed.
Though we are prima facie satisfied and expressly
observed in the above paragraphs that the investigation could
not have been ordered by the Magistrate in absence of the
compliance of the proviso inserted in subsection (3) of Section
156 of the Code of Criminal Procedure as applicable to the
State of Maharashtra, we have also considered the merits of the
allegation contained in the complaint. The entire case as set
out in the complaint is that the said land at Bandra Kurla
Complex to which a reference has been made was being
developed as 'driveintheatre' by using 2.0 FSI, whereas what
was permissible was an FSI of 1.0. The factual disclosure reveal
that the Urban Development Department itself had clarified its
decision to confer the FSI of 2.0 and on the relevant date of the
th
MOEF notification, the existing FSI was permitted. As on 19
February 1991, the GDCR was applicable and for commercial
development, it permitted an FSI of 2.0. The lease deed dated
th
19 February 1991 in favour of the Indian Film Combine
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
29/30
Pvt.Ltd is also placed on record which would establish that the
user of the land in issue was for activities other than which is a
driveintheatre and it permitted its user as restaurant, bar,
th
petrol pump etc. A communication dated 15 July 1999 issued
by the Collector is also placed on record which contemplates
th
the said user. Further, an order is issued on 19 August 1999
by the State Government in terms of the DCR of 1991 and it is
applicable for redevelopment of driveintheatre also clarify that
in redevelopment proposal hotel user shall be permissible,
subject to the relevant rules and regulations and the
redevelopment would not amount to deviation of land user
proposal of the Bandra Kurla Complex. In such circumstances,
since on the relevant date, both FSI 2.0 and commercial user
was admissible and permissible, we find that the complaint is
misfounded and is nothing but a distortion of the factual and
legal position with regard to the land in question in issue as on
the date of the MOEF Notification. In such circumstances, the
impugned order passed by the authority passed by the Special
Judge proceeding on the basis of the complaint, without
verification or application of mind to the facts placed before
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::
APL 1311.doc
30/30
him, in light of the documents produced by the complainant
himself, in our view cannot be sustained in law and the
impugned order, therefore, deserves to be quashed and set
aside.
For the reasons recorded above, Criminal
th
Application is allowed. The impugned order dated 25 October
2018 passed by the learned Special Judge (Under the
Prevention of Corruption Act) for Greater Mumbai, at Mumbai
in ACB Miscellaneous Application No.258 of 2018 is quashed
and set aside.
No order as to costs.
(SMT. BHARATI H. DANGRE, J.) (RANJIT V. MORE J.)
Tilak
::: Uploaded on - 08/05/2019 ::: Downloaded on - 01/04/2024 16:42:48 :::