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
- Code of Criminal Procedure, 1973 — s. 154(3), 156(3), 197(1)(b)
- Indian Penal Code, 1860 — s. 120B, 34, 415, 418, 420, 448, 467
- Prevention of Corruption Act, 1988 — s. 13, 9
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
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UGALMUGALE Date:
2026.09.17
11:37:04 +0530
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