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Bombay High Court

HARAKCHAND JAINversusSTATE OF MAHARASHTRA AND ANR

Decided
Disposal
Disposed Off

Holding

The Court held that the lack of statutory sanction and the generic nature of the complaint rendered the magistrate’s order and the FIR invalid, and therefore all writ petitions were allowed and the FIR quashed.

Summary

The Bombay High Court heard a group of five writ petitions seeking to quash a criminal FIR and the magistrate’s order directing investigation under Section 156(3) CrPC. All petitions arose from the same FIR (No.11 of 2022) filed on a complaint by a former KDMC corporator alleging fraud and corruption in a redevelopment project, implicating 18 accused including municipal officials and a developer. The petitioners argued that the complaint was generic, lacked specific particulars, and did not obtain the mandatory sanction under Section 197(1)(b) CrPC for prosecuting public servants, rendering the magistrate’s order and the FIR invalid. The Sessions Court had earlier set aside the magistrate’s order, and the High Court affirmed that the magistrate had failed to consider the sanction requirement and lacked jurisdiction under the Prevention of Corruption Act. Consequently, the Court allowed all five writ petitions, quashing the FIR and the investigation order, and disposed of the matters without costs.

Issues considered

  • The FIR and investigation order can be quashed on the ground that the underlying complaint was set aside by the Sessions Court.
  • Whether the magistrate was required to obtain sanction under Section 197 CrPC before ordering investigation against public servants.
  • Whether the magistrate had jurisdiction to entertain a complaint under the Prevention of Corruption Act.
  • The adequacy of the complaint’s particulars to sustain criminal proceedings.

Legislation cited

Subjects

  • criminal procedure
  • quashing FIR
  • sanction for prosecution of public servants
  • jurisdiction
  • magistrate order
  • Section 156(3) CrPC
  • Section 197 CrPC
  • Prevention of Corruption Act
  • development fraud
  • writ petition

Judgment

                                     CRI WP-5354-22 570-22 568-22 594-22 & 567-22.odt


Ajay

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            CRIMINAL APPELLATE JURISDICTION

                        WRIT PETITION NO. 5354 OF 2022

       Harakchand Jain                                        .. Petitioner
                  Versus
       State of Maharashtra & Anr.                            .. Respondents
                                    WITH
                        WRIT PETITION NO. 570 OF 2022

       Shankar Shrirangrao Bhise                              .. Petitioner
                  Versus
       State of Maharashtra & Anr.                            .. Respondents
                                    WITH
                        WRIT PETITION NO. 568 OF 2022

       E. Ravendiran                                          .. Petitioner
                  Versus
       State of Maharashtra & Anr.                            .. Respondents
                                    WITH
                        WRIT PETITION NO. 594 OF 2022

       Raghuvir Ramrao Shelke & Ors.                          .. Petitioner
                  Versus
       State of Maharashtra & Anr.                            .. Respondents
                                    WITH
                        WRIT PETITION NO. 567 OF 2022

       Govind M. Bodke                                        .. Petitioner
                  Versus
       State of Maharashtra & Anr.                            .. Respondents
                                  ....................
        Mr. Drupad Sopan Patil, Advocate for Petitioners in WP 5354/22 &
         594/22
        Mr. A.S. Rao, Advocate for Petitioners in WP 567/22, 568/22 &
         570/22
        Ms. Anuja S. Gota, APP for State
                                     ...................


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                              CORAM : MILIND N. JADHAV, J.
                              DATE  : SEPTEMBER 17, 2026
P. C.:
1.       Heard learned Advocates appearing for the parties.


2.       This is a group of 5 Writ Petitions seeking quashing of criminal

proceedings on merits. They all pertain to one single FIR No.11 of

2022 dated 27.01.2022 (for short "FIR"). Respondent No.2 is common

in all 5 Petitions as he is the complainant. Respondent No.2 filed

complaint accusing Petitioners, who are arrayed as accused in the

FIR, for offences punishable under Sections 420, 418, 415, 467, 448,

120B and 34 of Indian Penal Code, 1860 and Sections 9 and 13 of

Prevention of Corruption Act, 1988 with regard to a redevelopment

project. Complaint is the ex-Corporator of Kalyan Dombivili Municipal

Corporation (for short "KDMC"). Accused Nos.1 - 5 are the Municipal

Commissioners of KDMC during the period 2004 to 2021. Accused

Nos. 6 - 8 were working as Assistant Town Planners of KDMC whereas

Accused Nos.9 - 16 were working as Assistant Town Planners and

Engineers. Accused No.17 is the Developer and Accused No.18 is the

architect. All 5 Petitions are decided by this common judgment.

3.       Writ Petition No.5354 of 2022 is filed by Developer, he seeks

quashing of the FIR on the prinicpal ground that order dated

18.01.2022 passed by the Magistrate directing investigation under

Section 156(3) of Code of Criminal Procedure, 1973 (for short "CrPC")


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in Criminal Miscellaneous Application No.327 of 2021 has been set

aside by the Sessions Judge in Criminal Revision Application No.11 of

2022 vide order dated 21.05.2022. Both these orders are appended at

Exhbit "O" and "Q" in Writ Petition No.5354 of 2022. His principal

contention is that since the Complaint is quashed and set aside by

virtue of the Revision order, FIR dated 27.01.2022 which is based on

the complaint should be quashed and set aside since merits have been

considered by the learned Sessions Judge.

4.    Writ Petition No.594 of 2022 is filed by 8 Petitioners, Petitioner

Nos. 1-7 still working with KDMC and Petitioner No.8 is retired. Their

challenge is to the order dated 18.01.2022 passed by the Magistrate

directing investigation under Section 156(3) of CrPC in Criminal

Application No.327 of 2021.

5.    Writ Petition No.570 of 2022 is filed by 1 Petitioner who was the

then Chairman of Maharashtra Housing Development Corporation and

named as accused in the offence. He challenges order dated

18.01.2022 and FIR dated 27.01.2022 registered thereupon.

6.    Writ Petition No.568 of 2022 is filed by the then Municipal

Commisisoner who worked from 13.07.2015 to 25.05.2017. He

challenges the order dated 18.01.2022 and the FIR dated 27.01.2022

registered thereupon.




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7.    Writ   Petition   No.567   is   filed   by   the    then     Municipal

Commisisoner who worked from 18.03.2018 to 14.02.2020. He

challenges the order dated 18.01.2022 and the FIR dated 27.01.2022

registered thereupon.

8.    All facts are common and challenges are also identical in all 5

Petitions.

9.    Briefly stated, redevelopment of Manik Colony was undertaken

by the tenants and owner thereof sometime in the year 2004 onwards.

It is admitted position on record that there were 137 tenants and

between 2004 and 2010 there were several litigations, some of which

went right upto the Supreme Court and many of them were filed in

this Court where various orders came to be passed. In 2010,

demolition of all dilapidated structures in Manik Colony took place

and    redevelopment     commenced,      after     a     few     years    part

Commencement Certificate was issued by KDMC and this went on

upto 2021 when Respondent No.2 - Complainant who is an ex -

Corporator of KDMC filed a complaint dated 18.01.2022 with the

Superintendant of Police, Divisional Commissioner and Police

Inspector Bazarpeth Police Station on 24.07.2021 alleging that KDMC

officials along with the Developer redeveloped Manik Colony property

by playing fraud upon the tenants as well as the Municipal

Corporation and obtained demolition permissions without following


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the due process of law and without having the requisite majority

consent of the tenants. Further allegation in the complaint was that

the new construction put up by the developer was not in accordance

with the MOU and the Minuites of the Meetings dated 24.11.2010,

inter alia, alleging that tenants were kept in the dark, that there was

active connivance of Developer with the high officials of KDMC in

granting FSI sanction without verifying details of tenants, that santion

of construction permissions was contrary to the mandatory provisions

of DCPR and the Developer carried out illegal works contrary to the

provisions of MRTP Act, 1966.

10. It is seen that redevelopment has taken place, several rounds of

proceedings have been heard by KDMC, tenants were given an

opportunity by this Court to raise their objections which they did

before KDMC and which KDMC rejected by order dated 20.07.2016

which was challenged in Writ Petition No.11484 of 2018 wherein no

interim relief was granted by order dated 17.10.2016. It is seen that

this Court clarified that because part Commencement Certificate was

already granted, Occupancy Certificate of the constructed buildings

shall be subject to the outcome of the Petition. It is only thereafter the

present complaint was filed in the year 2021 by Respondent No.2.

Subsequently the above Writ Petition has been dismissed as withdrawn

by the tenants.


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11. Submissions on bhealf of the learned Advocates for Petiitoners

are common and identical. Mr. Patil, learned Advocate for the

Developer would heavily rely upon the order of the Sessions Judge

dated 21.05.2022 by virtue of which the Magistrate order dated

18.01.2022 was set aside and quashed on several legal and factual

grounds. Apart from the Developer, other Petitioners are all admittedly

public servants, all other learned advocates appearing for other

Petitioners would jointly echo the fact that in the complaint that is

filed, there is no averment of sanction having being obtained in

accordance with the provisions of Section 197(1)(b) of CrPC to seek

prosecution of the public servants. It is seen that out of 18 accused

persons, Accused Nos. 1 - 16 are public servants and Complaint is on

the basis that while discharging their duties as public servants, the

alleged abberations were committed. Fact that there is no sanction

obtained is one of the strongest circumstance for setting aside not only

the order dated 18.01.2022 passed by the Magistrate but also the

subsequent FIR which was registered on 21.07.2022 and this, deserves

to be accepted. What is intriguing is the fact that such an important

circumstance is given a complete go – by by the concerned Magistrate

while passing   the order dated 18.01.2022 and therefore there is

complete non – application of mind.




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12. The next crucial submission made by the Petitioners deserve

attention. Prosecution’s case of Petitioners having committed excessess

contrary to law over a period of 18 years is not at all specific and

based on specific facts and role attributed to any of the 18 accused

persons for they not having complied with the provisions of law. It is

seen that an omnibus and general statement is made alleging non –

compliance of statutory provisions by the officers of the Corporation

and they being hand in glove with the Developer and his Architect

without specifying any factual circumstance.

13. The complaint as can be seen is generic and omnibus in its

nature, it does not give any particulars of facts so as to attribute

cheating, breach of trust and forgery to any of the Petitioners before

the Court. It clearly emanates from the record that after the tenants

were unsuccessful in getting interim relief in their Writ Petition from

this Court and this Court having specifically clarified in its order dated

22.06.2017 that the Final Occupnacy Certificate of the building shall

be subject to outcome of the Petition, the Complaint has thereafter

been filed by Respondent No.2 as a complete counterblast and after

thought for reasons best known to the Complainant. It is borne out of

the record that every iota of doubt and suspicison expressed by the

Complainant is already agitated in a series of Writ Petitions filed

before this Court between 2007 and 2017 by the Developer as well as


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the tenants and therefore continiution of the civil lis in this fashion by

filing criminal proceedings cannot be accepted and countenanced. It is

prima facie seen that the learned Magistrate has acted mechanically

without application of mind to the contents of the Complaint and the

previous history of litigation.

14. Undoubtedly if there is any violation of statutory provisions in

redevelopment process, the law will take its own course. Criminal

prosecution to indict the officers of KDMC namely Assitant Directors of

Town Planning, Municial Commissioners, Managing Director of

Maharahtra Housing Developing Corporation and Engineers without

attributing incriminating material to any of their acts in a generic

sense cannot be allowed to sustain.

15. It is prima facie seen that while setting aside the order dated

18.01.2022 passed by the Magistrate allowing the Complaint of

Respondent No.2, learned Sessions Court has rightly observed that

there is no mention of compliance of the provisions of Section 154(3)

of CrPC in paragrapgh No.16, that is it was mandatory for the

Magistrate to see if sanction was obtained to prosecute the Accused

Nos. 1 - 16 and the Investigation Officer is silent about any such

sanction having been obtained as stated in paragrapgh No. 17 and

most importantly, since Complaint is filed under the PC Act 1988,

learned Magistarte does not have jurisdiction to hear and prosecute


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                      such a complaint under the PC Act and he ought to have referred the

                      said complaint to the Special Judge as observed in paragrapgh No. 18.

                      16. It is further borne out from the record that on 12.04.2024, Writ

                      Petiton No. 11484 of 2018 filed by the tenants was dismissed and

                      further challenge thereto was also dismissed by the Supreme Court.

                      Further it is also seen that challenge to the order dated 21.05.2022 in

                      Writ Petition Nos.2517 of 2022, Writ Petition No.2518 of 2022, Writ

                      Petition No.2519 of 2022 and Writ Petition No.2520 of 2022 filed by

                      the Complainant was withdrawn by the Respondent No.2 -

                      Complainant.

                      17. Hence in view of the aforesaid strong circumstance which are

                      prima facie borne out from the record, I am inclined to accept the

                      submissions made by the learned Advocates for the Petitioners before

                      me and the Petitions deserve to succeed. Hence the following order:-

                      (i) Writ Petition No.5354 of 2022 stands allowed in terms of prayer
                      clause (a); (ii) Writ Petition No.594 of 2022 stands allowed in terms of
                      prayer clauses (a) and (b);(iii) Writ Petition No.570 of 2022 stands
                      allowed in terms of prayer clauses (b) and (c); (iv)Writ Petition
                      No.568 of 2022 stands allowed in terms of prayer clauses (b) and (c);
                      (v) Writ Petition No.567 of 2022 stands allowed in terms of prayer
                      clause (b) and (c).

                      18.     No order as to costs. All 5 Writ Petitions are allowed and

                      disposed in the above terms.


Amerkar                                                            [ MILIND N. JADHAV, J. ]


           Digitally signed
           by AJAY
AJAY
TRAMBAK
           TRAMBAK
           UGALMUGALE
                                                                                               9 of 9
UGALMUGALE Date:
           2026.09.17
           11:37:04 +0530


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