Oral Judgment:

1. Heard Mr. Shirish Gupte learned Senior Advocate for the Petitioner, Mr. Diwakar Dwivedi learned Advocate for Respondent No. 2 and Ms. Pallavi Dabholkar, learned APP for Respondent No. 1-State.

2. By this Petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (hereafter “Cr.P.C.”), the Petitioner assails the order dated 11th May 2005 ( hereafter “impugned order”) passed by the Special Judge, Sessions Court for Greater Mumbai (hereafter ‘Sessions Court’) in Private Complaint No.75 of 2005, by which the Sessions Court allowed the application filed by Respondent No.2 under Section 156(3) of Cr.P.C. and directed the Investigation Officer to register an FIR and the consequent FIR No.17/2005 registered with the Anti-Corruption Bureau, Mumbai (hereafter “impugned FIR”) for offences punishable under Section 13(1)(d) of the Prevention of Corruption Act, 1988 (hereafter “P. C. Act 1988”), and Sections 465, 468, 471, 420 read with Section 120 (B) read with Section 109 of the Indian Penal Code, 1860 (hereinafter “IPC”).

3. Rule in this Petition was issued on 18th December, 2006 and the Petitioner was secured by an interim order.

4. Mr. Shirish Gupte learned Senior Advocate for the Petitioner, submits that the allegation in the private complaint and the impugned FIR against the Petitioner (Assistant Commissioner of Municipal Corporation of Greater Mumbai), who is a “Public Servant,” pertain to an act committed by the Petitioner during the discharge of his official duties. He submits that since these facts are not in dispute, the Sessions Court could not have taken cognizance of the complaint, much less issued a direction in exercise of jurisdiction under Section 156(3) of Cr.P.C. as ordered on 11th May 2005 to register an FIR. He submits that Respondent No.1 could not have registered an FIR without sanction under Section 197 of the Cr.P.C. and Section 19 of the P. C. Act, 1988. Therefore, on these limited issues, he submits that the impugned order and the impugned FIR should be quashed.

5. Ms. Dabholkar, learned APP for the Respondent-State, submits that there is no sanction from the Appropriate Government either under Section 197 of Cr.P.C. or under Section 19 of the P. C. Act 1988. She, however, refers to the affidavit filed by Respondent No.1 to submit that there is sufficient material on record to indicate the Petitioner's involvement in the crime. She also alternatively submits that the prosecution is not barred from obtaining a sanction under Section 197 of Cr.P.C. or under Section 19 of the P. C. Act 1988.

6. Mr. Diwakar Dwivedi learned Advocate for Respondent No.2, submits that the allegations made against the Petitioner are contained in para 8 of the Private Complaint No.75 of 2005. He submits that, although the allegations in the complaint against the Petitioner pertain to acts committed by the Petitioner as a Public Servant in the discharge of official duties, the said allegations show the involvement of Public Servants in the crime as more particularly referred to in the complaint. He supports the impugned order and the registration of the impugned FIR.

7. Mr. Diwakar Dwivedi, learned advocate for Respondent No. 2, alternatively submits that Respondent No. 2, whose grievance in Private Complaint No. 75 of 2005 concerns the illegality of matters related to the Slum Rehabilitation Scheme, should not be deprived of remedies due to the absence of a sanction against public servants, and that other legal remedies available to Respondent No. 2 should remain open.

8. Mr. Shirish Gupte, learned Senior Advocate, responding to the alternate submission made by Mr. Diwakar Dwivedi, submits that Respondent No. 2 is free to pursue any remedy available under the law, and if such a remedy is pursued, it must be considered strictly in accordance with the law. However, he emphasises that the impugned order and impugned FIR cannot be sustained and must be quashed.

9. Heard arguments, perused records with the assistance of the learned Advocates.

10. From the rival contentions the point for consideration in the present petition is whether, in the absence of sanction under Section 197 of Cr.P.C. and Section 19 of the P. C. Act,1988, there could have been a direction either under Section 156(3) for registration of an FIR, or whether an FIR under Section 154 of Cr.P.C. could be registered in the absence of such a sanction?

11. Reading of Section 197 of the Cr. P.C. indicates a statutory restriction on the court's jurisdiction to take cognizance of offences alleged against Public Servants without prior sanction from the appropriate government. The condition for this provision to apply is that the alleged offence must have been committed by the Public Servant while acting in the discharge of, or purported discharge of their official duties. Section 19 of the P.C. Act 1988 provides a protective shield, requiring prior sanction before prosecuting a Public Servant alleged to have committed offences under Sections 7, 11, 13, and 15 of the P.C. Act 1988. The rationale behind these provisions is to safeguard public functionaries from frivolous or vexatious prosecutions for actions taken in good faith while performing their official duties. This ensures that the fear of litigation does not hinder the efficient functioning of public administration.

12. The fact that the Petitioner is a “Public servant” within the meaning of section 21 of IPC and clause (c) of section 2 of the P.C. Act, 1988, is not contested by the Respondents. Allegations in the Private Complaint bearing No.75 of 2005 filed by Respondent No. 2 reveal acts committed by the Petitioner in the discharge of his official functions.

13. The issue raised in this petition has been addressed in the case of Debashish Chakrabarty v/s State of Maharashtra and Ors(2015 SCC OnLine Bom 6576) decided by the Division Bench of this Court. Paragraph Nos. 2 to 14, read as follows.

                   “2. The Petitioners in all these writ petitions are either the high ranking officers of the State Government or the employees of the Municipal Corporation for Grater Mumbai. The Petitioners are “Public servant” within the meaning of section 21 of the Indian Penal Code, 1860 and clause (c) of section 2 of the Prevention of Corruption Act, 1988 [for short “PC Act”].

                   3. By these writ petitions, the Petitioners are challenging the orders passed by the designated Special Judge under the PC Act or the orders made by the learned Metropolitan Magistrate, whereby the directions have been given to carry out investigation under section 156(3) of the Code of Criminal Procedure, 1973 [for short “the Code”]. The orders are issued on the private complaints filed by the Respondent-Complainants seeking directions to the police to carry out investigation. In pursuance of these orders, various FIRs have been registered at various police stations.

                   4. The short question which arises for our consideration in these writ petitions is whether sanction as contemplated under section 197 of the Code and section 19(1)(c) of the PC Act is required to be obtained from the Competent Authority before issuance of direction for investigation under section 156(3) of the Code.

                   5. The orders passed directing police to investigate and consequent registration of FIRs are sought to be quashed and set aside on the sole ground that prior sanction as contemplated either under section 197 of the Code or section 19(1)(c) of the PC Act is not obtained prior to the issuance of the order under section 156(3) of the Code.

                   6. The substratum of allegations in the private complaints filed before the Special Judge/Magistrate is that Petitioners are alleged to have committed various offences in discharge of their official duties.

                   7. In order to buttress their contention that without prior sanction from the Competent Authority, order directing investigation under section 156(3) of the Code will not stand the scrutiny of law, the learned Senior Counsel appearing for the Petitioners heavily relied upon the following decisions:

                   1] Anil Kumar & Others v. M.K. Aiyappa [2013 (10)SWCC.705

                   2] Priyanka Srivastava v. State of Up[2015(6)SCC 287]

                   3] D.T. Virupakshappa v. Subash [2015 Cr.L.J.2589]

                   4] Pandharinath Narayan Patil v. State of Maharashtra [2015(2) BCR (Cri)338].

                   8. The learned Counsel appearing for the Respondents – original complainants contested the petitions very vehemently. Though the learned Counsel appearing for the Complainants have not disputed that the Petitioners in above writ petitions are either the public servants or employees of the Municipal Corporations and the offences are alleged to have been committed by them in dishcarge of their official duties, they submitted that order under section 156(3) and consequent FIRs cannot be quashed. In support of their submission,, they heavily relied upon the recent decision of the Apex Court in Lalita Kumari v. Govt. of UP [2014(2)Scc1].

                   They submitted that section 156(3) of the Code is alternative to section 154 of the Code, therefore when no sanction is required for action under section 154 of the Code for registration of FIR, no sanction can be read into section 156(3). They lastly relied upon the decision of the Apex Court in K.Kalimuthu v. State [(2005)4 SCC 512].

                   9. Before we proceed to deal with the contentious issue, it would be apt to have a look at section 197 of the Code and section 19 of the PC Act, both of which provide that previous sanction is necessary for prosecution of the public servants. For ready reference, sections are reproduced hereinbelow :

                   “197. 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 dis of his official duty, no Court shall take cognizance of such offence except with the previous sanction-

                   (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

                   (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government :

                   Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression “State Government” occurring therein, the expression “Central Government” were substituted.

                   (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge oof his official duty, except with the previous sanction of the Central Government

                   (3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving,, and thereupon the provisions of that sub-section will apply as if for the expression “Central Government” occurring therein, the expression “State Government” were substituted.

                   (3A) Notwithstanding anything contained in sub-section (3), no Court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.

                    (3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a Court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the Court to take cognizance thereon.

                   (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held

                   "19. Previous sanction necessary for prosecution.-

                   (1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction [save as otherwise provided in Lokpal and Lokayuktas Act 2013].-

                   (a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government:

                   (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government:

                   (c) in the case of any other person, of the authority competent to remove him from his office.

                   (2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub- section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.

                   (3) Notwithstanding anything contained in the code of Criminal Procedure, 1973.-

                   (a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby:

                   (b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice:

                   (c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.

                   (4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.

                   Explanation.-For the purposes of this section,-

                   (a) error includes competency of the authority to grant sanction:

                   (b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature."

                   10. By catena of decisions, it is now well settled principle that before prosecuting any public servant, previous sanction under section 197 of the Code or section 19 of the PC Act is necessary. The Apex Court in Anil Kumar's case (supra) has held thus:

                   11. The scope of the above mentioned provision came up for consideration before this Court in several cases. This Court in Maksud Saiyed case [(2008) 5 SCC 668) 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.

          21. Learned senior counsel appearing for the appellants raised the contention 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. Sub-section (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.

                   22. Further, this Court in Army Further, Headquarters v. CBI [(2012) 6 SCC 228) and opined as follows:

                   82. 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..

                   83. 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 ab-initio.

                   ...."

                   11. Recently, the Apex Court in Priayka Srivastava's case (supra) has reiterated the earlier view in Anil Kumar's case and has further observed that:

                   "29. At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same."

                   12. In D.T. Virupakshappa's case's (supra), the Appellant public servant was alleged to have exceeded his power during investigation of a criminal case and assaulted the Respondent in order to extract some information with regard to the death of one Sannamma. The Respondent Complainant filed private before the Magistrate. The learned JMFC took cognizance of the case and registered Criminal Case No. 74 of 2009 and issued summons against the Appellant for the offence punishable under sections 323, 324, 326, 341, 120, 114 and 506 read with 149 of the IPC. The main contention before the Apex Court was that learned Magistrate could not have taken cognizance of the offence without there being sanction under section 197 of the Code. In dealing with the contention, the Apex Court has held that:

                   "In the case before us, the allegation is that the appellant exceeded in exercising his power during investigation of a criminal case and assaulted the respondent in order to extract some information with regard to the death of one Sannamma, and in that connection, the respondent was detained in the police station for some time. Therefore, the alleged conduct has an essential connection with the discharge of the official duty. Under Section 197 of CrPC, in case, the Government servant accused of an offence, which is alleged to have been committed by him while acting or purporting to act in discharge of his official duty, the previous sanction is necessary."

                   13. The Division Bench of this Court in Pandharinath's case (supra), in paragraph 32 has made following observations:

                   "In the case of Anil Kumar, the Apex Court after considering the principles load down by the Constitution Bench in the case of State of UP v. Parasnath Singh and in Subramanium Swami v. Manmohan Sing has held that the word "cognizance" has a wider connotation and is not merely confined to the stage of taking cognizance of the offence. The Apex Court has held that the Special Judge/Magistrate cannot refer the matter under section 156(3) against a public servant without a valid sanction order. In the instant case undisputedly, there is no such sanction order hence, the learned Magistrate was not justified in issuing order under section 156(3) of the Code."

                   14. In the light of above mentioned principles of law laid down by the Apex Court as well as by this Court and considering the admitted facts on record that the Petitioners are the public servants within the meaning of section 21 of the Indian Penal Code, 1860, we are of the view that the provisions of section 197 of the Code and/or section 19 of PC Act are attracted in their case. Before passing order under section 156(3) of the code, sanction under section 197 of the Code and/or section 19 of the PC Act is mandatory and without prior valid sanction order, the Special Judge/ Magistrate cannot pass order under section 156(3) of the Code. Admittedly, no sanction as contemplated under section 197 of the Code or Section 19 of the PC Act was obtained by the Complainants. Therefore, the Special Judge has no jurisdiction to pass order under section 156(3) of the Code.”

14. Mr. Diwakar Dwivedi, learned Advocate for Respondent No. 2, and Ms. Pallavi Dabholkar, learned APP, do not quarrel with the decision in the case of Debashish Chakrabarty (supra).

15. Indisputably, no sanction as contemplated under Section 197 of the Cr.P.C. or Section 19 of the P.C. Act 1988 was obtained either before the impugned order or prior to the registration of the impugned FIR.

16. Considering the facts of the case at hand and following the pronouncement of this Court in the case of Debashish Chakrabarty (supra), the impugned order passed under Section 156(3) of Cr.P.C., as well as the impugned FIR registered based on the impugned order, against the Petitioner are illegal and liable to be set aside. Accordingly, the impugned order and the impugned FIR are quashed as against the Petitioner.

17. Regarding the alternate submission made by Mr. Diwakar Dwivedi learned Advocate for Respondent No. 2, useful reference can be made to the decision of the Division Bench of this Court in the case of Sayed Anwar Ahmed v. The State of Maharashtra,(Criminal Writ Petition No.924 of 2016 decided on 27th & 28th February 2017.) regarding complaints related to the Slum Rehabilitation Scheme, which made the following observations in Paragraph No. 28:

          “28. In the city of Mumbai, there are large number of such Complaints filed concerning execution and implementation of several Rehabilitation Schemes which are being implemented in Mumbai. In view of the law laid down by the decision of this Court in Shailesh Gandhi Vs State of Maharashtra and Others, the aggrieved party must first approach the High Power Committee. As directed by the said Judgment, if the High Power Committee finds that there is an element of criminality and particularly in cases of fraud, impersonation and like cases, the High Power Committee will ensure that the investigation will be handed over to the appropriate agency. As stated earlier, the Complaint in the present relies on so called draft prepared containing names of the eligible slum dwellers. If the complainant has any grievance about the names in Annexure – II, he can always approach High Power Committee. The said Committee can direct setting of criminal law in motion if it finds element of criminality.”

18. If Respondent No.2 is entitled to raise any grievance or approach the High Power Committee, as referred to in the decision of Sayed Anwar Ahmed (supra), then that issue is left open for consideration in accordance with law.

19. In view of the above, this Writ Petition is allowed. Rule is made absolute in terms of prayer clause (a)(i), (ii) and (iii), which reads as follow:-

                   (a) call for the relevant records and proceeding from the office of the Anti Corruption Bureau in relation to the CR No.17/2005 and after going into the legality of the same

                   (i) quash and set aside the order dated 11.5.2005 passed by the Special Judge, Sessions Court for Greater Bombay in private Complaint No.75/2005 and for that purpose issue appropriate writ and/or order under section 227 of the Constitution of India r/w section 482 of the Cr.P.C.

                   (ii) quash and set aside the FIR being CR No.17/2005 registered by Anti Corruption Bureau, Mumbai

                   (iii) quash and set aside complaint bearing No.75/2005.

20. In the facts of the case, there shall be no orders as to costs.

21. Writ Petition No. 2433 of 2006 is disposed of.