Mangesh Anant Kudalkar vs The State Of Maharashtra

Court
Bombay High Court

CNR No : HCBM010662492025

901-REVN-539-2025 (CR) VD-1.doc
N.S.Kamble
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO. 539 OF 2025
Mangesh Anant Kudalkar ...Applicant
VERSUS
The State of Maharashtra & Anr. ...Respondents
____________________________________________________________
Mr.A.P. Mundargi, Senior Advocate a/w Ms.Pravada Raut i/b Mr.Prashant
Badole, for the Applicant.
Mr.S.S. Pednekar, APP for Respondent-State.
Mr.Vijay Niwate, H.C., ACB, Mumbai.
Digitally signed
by NILAM
SANTOSH
KAMBLE
Date:
2026.07.20
11:07:56 +0530
NILAM
SANTOSH
KAMBLE
____________________________________________________________
CORAM : SHIVKUMAR DIGE, J.
th
DATE : 15 JULY 2026
ORAL JUDGMENT :
. The challenge in this Revision Application is to the impugned
th
order passed by the learned Special Judge, Greater Bombay, dated 17
December 2025, whereby the complaint is forwarded to the Assistant
Commissioner of Police, Anti-Corruption Bureau, Mumbai, under Section
175(3) of the Bharatiya Nagarik Suraksha Sanhita (‘BNSS’ for short), in
view of the Section 17 of the Prevention of Corruption Act, 1988.
2. It is alleged that a hall along with commercial premises has been
unauthorizedly constructed on the plots reserved by MHADA for amenity
space and garden. It is further alleged that the Applicant, who is member of
legislative assesmbly by misusing his official position, carried out the said
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unauthorized construction by utilizing public funds and thereafter gave the
commercial premises on rent.
3. It is contention of learned Senior Advocate for the Applicant
that the learned Special Judge has passed the impugned order without
calling for any report from the superior officer of the Applicant and without
affording an opportunity of hearing to the Applicant. It is submitted that
without compliance of Section 175(3) and Section 173(4) of the BNSS Act,
the impugned order has been passed. Further, no prior sanction, as
contemplated under Section 218 of the BNSS, has been obtained before
taking cognizance of the offence against the applicant, and requested to
allow the Application.
4. The learned APP supports the submissions of the learned Senior
advocate for the Applicant and requested to remand the matter to learned
Special Judge, Greater Bombay, for fresh hearing.
5. The Respondent party-in-person, submits that the learned Judge
has passed well-reasoned order, no interference is required in it and
requested to reject the Application.
6. I have heard all learned counsel. Perused impugned order.
7. While passing order the learned Special Judge has observed that
the allegations are serious in nature. The letter issued by MHADA dated
th
25 November 2025 shows substance in allegations, on that ground the
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learned Judge has passed impugned order.
8. In my view, section 173 of the BNSS prescribes procedure
before an informant can invoke the jurisdiction of the Magistrate under
section 175(3), namely: (a) making a written complaint to the officer-in-
charge of the police station under section 173(1), (b) if aggrieved,
approaching the superior police officer under section 173(4), and only upon
failure of those remedies, (c) seeking a direction for investigation under
section 175(3) BNSS. The Hon'ble Supreme Court in Priyanka Srivastava &
Anr. v. State of U.P., (2015) 6 SCC 287, while interpreting section 156(3)
CrPC (pari materia with section 175(3) BNSS), has stressed that recourse to
such jurisdiction cannot be taken as a matter of course, and that the
complainant must first exhaust the remedies under sections 154(1) and
154(3) CrPC and support the application by a duly sworn affidavit to curb
frivolous and vexatious litigation. In the present case, on perusal of the email
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dated 6 February 2025 at about 2:13 pm addressed to the ACB office,
thereby making complaint against the Applicant. it is pertinent to note that
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on the same date i.e on 6 February 2025 itself at about 2:46 pm an email
was sent to the Addl. CP ACB Mumbai. Section 175(4) of the B.N.S.S
provides for procedure to be followed by Magistrate when he receives a
complaint against a public servant. The Statute mandates that an order
under 175(3) can be made against a public servant, subject to satisfaction of
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two conditions, namely:
(a) receiving a report containing the facts and circumstances of the
incident from an officer superior to the public servant concerned;
and
(b) after consideration of the assertions/made by the public
servant as to the circumstances leading to the situation that led to
the incident so alleged.
9. It appear’s that the impugned order has been passed without
calling for any such report from a superior officer, and without affording any
opportunity to the Applicant, thereby rendering the order ex facie contrary
to section 175(4) BNSS.
11. The learned Special Judge has also not considered the protection
provided to Public Servants of any offence alleged to have been committed
by them while acting or purported to act in discharge of their official duty.
Section 218 of the B.N.S.S reads as under:
Section 218. Prosecution of Judges and Public Servants.
(1) When any person who is or was a Judge or Magistrate or
a public servant not removable from his office save by or
with the sanction of the Government is accused of any
offence alleged to have been committed by him while acting
or purporting to act in the discharge of his official duty, no
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Court shall take cognizance of such offence except with the
previous sanction save as otherwise provided in the Lokpal
and Lokayuktas Act, 2013.”
12. This section expressly prohibits any Court from taking
cognizance of an alleged offence committed by a Judge, Magistrate, or
public servant, in the discharge or purported discharge of official duties.
13. The Special Judge has not considered the procedure to be
followed under section 223 (2) of the B.N.S.S. which mandates that the
notice has to be served to the proposed Accused as per this section while
taking the cognizance of an offence. The Applicant was never served with
any such notice or even heard at any stage before the impugned order. The
Roznama shows that no notice was issued either to the Applicant or to ACB,
Mumbai at any stage prior to the impugned order. Considering these facts,
it is fit case to remand back for fresh hearing and to consider procedural
lapses.
14. In view of above, I pass following order.
ORDER
th
(i) The impugned order dated 17 December 2025,
passed by the learned Special Judge, Greater Bombay, is
quashed and set aside.
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(ii) The matter is remanded to the learned Special Judge,
Greater Bombay for fresh hearing.
(iii) The learned Special Judge shall decide the matter on
its own merit.
15. It is contention of learned APP that during pending of this
Application, a show cause notice is issued to the Senior Authority of Police.
As this Court has quashed and set aside the impugned order, the show cause
notice also stands quashed and set aside.
16. All pending Applications, if any, stand disposed of.
(SHIVKUMAR DIGE, J.)
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