Facts of the Case

The High Court of Punjab and Haryana considered four connected petitions challenging the order dated 3 July 2020 passed by the learned Sessions Judge, Gurugram, in exercise of powers under Section 156(3) of the Code of Criminal Procedure, 1973.

By the impugned order, criminal complaint No. COMI-04/2020 dated 3 July 2020, titled Raman Sharma vs K. Makrand Pandurang and Others, was forwarded to Police Station Sector-10-A, Gurugram for registration of an FIR and investigation. The petitioners challenged the said order and all consequential proceedings insofar as they related to them.

The petitioners included serving public officers holding various administrative and planning posts, including:

  • Vinay Pratap Singh, an IAS officer serving as Commissioner, Municipal Corporation, Gurugram;
  • Jitender Yadav, an IAS officer serving as Administrator, Haryana Shehri Vikas Pradhikaran, Gurugram;
  • Vivek Kalia, an HCS officer serving as Estate Officer-II, Haryana Shehri Vikas Pradhikaran;
  • Ravi Parkash Sihag, holding charge as Link Officer, Senior Town Planner, Gurugram;
  • Ved Parkash Sehrawat, District Town Planner (Enforcement), Gurugram;
  • Ranndil Sher Jatinder Singh Batth, District Town Planner (Planning and Enforcement), Gurugram; and
  • K. Makrand Pandurang, serving as Director, Town and Country Planning, Haryana.

The underlying criminal complaint was filed under Section 156(3) CrPC against the petitioners, certain other public servants and private persons. It alleged commission of numerous offences under the Indian Penal Code and several special statutes.

The allegations broadly concerned alleged encroachment, illegal construction, garbage dumping, storage of stones, cement and chemicals, and operation of commercial activities on land stated to be reserved as a “Green Area” or “Green Belt” within notified “Open Space” in Sector 94, Gurugram.

According to the complainant, Sector 94 had been notified as Open Space under the Gurgaon-Manesar Urban Complex Plan Scheme and construction activities were prohibited. It was alleged that factories, warehouses, residential buildings and commercial structures had nevertheless been constructed in violation of planning and development laws.

The complaint further alleged that:

  • factories and warehouses were causing environmental pollution;
  • waste was being discharged into green and open areas;
  • construction sites were operating without appropriate safety measures;
  • certain entities had allegedly obtained GST registrations at the disputed addresses, with an apprehension that prescribed GST might not have been paid;
  • sale deeds concerning land allegedly covered by statutory restrictions had been registered in collusion with officials and staff of the concerned Tehsil;
  • prior permission allegedly required from the Town and Country Planning Department had not been obtained;
  • incorrect particulars were allegedly recorded in sale deeds;
  • the alleged activities involved corruption, benami properties, money laundering and loss to the State exchequer;
  • State officials allegedly supported or failed to act against the alleged illegal activities; and
  • despite complaints to various authorities, no FIR had been registered.

The Sessions Judge, Gurugram, after referring to the complaint and accompanying documents, concluded that investigation was necessary and that registration of an FIR was a sine qua non. The complaint was consequently sent to Police Station Sector-10-A, Gurugram for lodging of an FIR and investigation.

The petitioners challenged this direction before the High Court.

 

Issues Involved

The principal issues before the High Court were:

  1. Whether an order directing investigation under Section 156(3) CrPC against public servants could validly be passed in relation to offences under the Prevention of Corruption Act, 1988 without previous sanction under Section 19 of that Act.
  2. Whether the learned Sessions Judge had properly applied judicial mind before directing registration of an FIR and investigation under Section 156(3) CrPC.
  3. Whether prosecution or cognizance under various special statutes could proceed without compliance with statutory requirements relating to prior sanction, prior notice, authorised complaints or competent authority approval.
  4. Whether police could investigate offences under Sections 3 and 4 of the Prevention of Money Laundering Act without the requisite specific authorisation by the Central Government.
  5. Whether the impugned order was sustainable when the complaint invoked numerous provisions of different enactments carrying separate statutory restrictions and procedural preconditions.
  6. Whether a bare observation that the Court had considered the complaint, documents and submissions was sufficient to demonstrate application of mind under Section 156(3) CrPC.

 

Petitioner’s Arguments

The petitioners contended that they were public servants and that Section 19 of the Prevention of Corruption Act, 1988 prohibited a Court from taking cognizance of specified offences under the Act against public servants without previous sanction of the competent Central or State Government, as applicable.

It was argued that the complaint invoked offences under the Prevention of Corruption Act, including Sections 7, 11, 13 and related provisions, but no previous sanction from the competent authority had been obtained.

The petitioners further submitted that:

  • in relation to offences under Sections 3 and 4 of the Prevention of Money Laundering Act, police investigation could not be undertaken unless specifically authorised by the Central Government through a general or special order and subject to prescribed conditions;
  • prosecution for offences under the Haryana Development and Regulation of Urban Areas Act, 1975 required previous sanction of the Director or an officer duly authorised in writing;
  • prosecution under the Punjab Scheduled Roads and Controlled Areas (Restriction of Unregulated Development) Act, 1963 similarly involved statutory sanction requirements;
  • cognizance of offences under the Air (Prevention and Control of Pollution) Act, 1981 could not be taken except upon a complaint by the competent Board or authorised officer, or by a person satisfying the prescribed prior notice requirement;
  • offences under the Environment (Protection) Act, 1986 were also subject to statutory requirements concerning a complaint by the Central Government, an authorised authority or officer, or a person complying with the prescribed prior notice mechanism;
  • cognizance under the Water (Prevention and Control of Pollution) Act, 1974 was similarly restricted by statutory complaint and prior notice requirements;
  • cognizance under the Haryana Municipal Corporation Act, 1994 could not be taken except upon a complaint or information from the Commissioner or another duly authorised officer or authority;
  • no prima facie case was made out against the petitioners under the numerous IPC provisions invoked in the complaint; and
  • in respect of offences allegedly connected with acts of public servants, the protection contemplated under Section 197 CrPC was also attracted.

The petitioners strongly argued that the impugned order had been passed mechanically and without proper application of judicial mind.

Reliance was placed upon Maksud Saiyed vs State of Gujarat and Others, (2008) 5 SCC 668, for the principle that where jurisdiction is exercised on a complaint under Section 156(3) or Section 200 CrPC, the Magistrate must apply judicial mind because setting criminal law into motion is a serious matter and the allegations must be properly scrutinised.

The petitioners also relied upon Anil Kumar vs M.K. Aiyappa and Another, (2013) 10 SCC 705, to contend that where the complaint concerned public servants and offences under the Prevention of Corruption Act, an order under Section 156(3) CrPC could not be passed in the absence of the legally required sanction.

It was additionally argued that the allegations related to Sector 94, Gurugram, which, according to the petitioners, fell within the jurisdiction of GMDA and outside the municipal limits of Municipal Corporation, Gurugram.

The petitioners further questioned the complainant’s locus standi and contended that the complaint was effectively in the nature of public interest litigation without adequate disclosure of credentials or individual prejudice.

The State also assailed the impugned order and adopted the arguments advanced on behalf of the petitioners.

 

Respondent’s Arguments

Respondent No. 2 opposed the petitions and contended that there was no illegality or perversity in the impugned order.

It was argued that:

  • the Sessions Judge had passed the order in accordance with law after proper application of mind;
  • the complainant was a resident of Gurugram and was aggrieved by illegal constructions allegedly raised by land grabbers and builders;
  • the alleged constructions violated various statutory provisions detailed in the complaint;
  • public servants impleaded in the complaint had allegedly failed to act against illegal activities being carried out by builders and land grabbers;
  • the complainant possessed sufficient locus standi to institute the complaint; and
  • no ground existed for interference by the High Court.

Respondent No. 2 therefore sought dismissal of the petitions and continuation of the investigation directed by the Sessions Judge.

 

Court Order / Findings

The High Court examined the statutory framework and the impugned order and recorded significant findings.

1. Previous Sanction Under Section 19 of the Prevention of Corruption Act

The Court observed that no Court could take cognizance of offences punishable under Sections 7, 11, 13 and 15 of the Prevention of Corruption Act, 1988 against public servants without previous sanction of the concerned Government.

The Court further noted that a Special Judge is deemed to be a Magistrate under Section 5(4) of the Prevention of Corruption Act and is clothed with magisterial powers under the CrPC. Nevertheless, Section 19 imposed a statutory requirement concerning previous sanction for cognizance of the specified corruption offences.

2. Section 156(3) CrPC Investigation Against Public Servants and Prior Sanction

The High Court considered the Supreme Court decision in Anil Kumar vs M.K. Aiyappa and Another, (2013) 10 SCC 705.

The Court noted that the question in Anil Kumar concerned whether sanction under Section 19 of the Prevention of Corruption Act was a precondition for ordering investigation against a public servant under Section 156(3) CrPC even at the pre-cognizance stage.

The High Court recorded that the Supreme Court had answered the question in the affirmative.

The Court also considered Manju Surana vs Sunil Arora, (2018) 5 SCC 557, wherein the question whether a direction under Section 156(3) CrPC could be issued without prior sanction had been referred to a larger Bench.

However, the High Court specifically observed that while making such reference, the Supreme Court had not declared the ratio in Anil Kumar to be per incuriam or bad law.

Accordingly, applying Anil Kumar, the High Court held that an order directing investigation under Section 156(3) CrPC could not be passed in the absence of valid sanction under Section 19 of the Prevention of Corruption Act, 1988.

3. Lack of Application of Mind by the Sessions Judge

The High Court reiterated that even at the stage of Section 156(3) CrPC, while directing investigation, the Magistrate must apply judicial mind.

The Court held that the concerned Court could not act mechanically or mindlessly and that application of mind must be reflected in the judicial order.

Upon examining the impugned order, the High Court found that the Sessions Judge had passed the order without due application of mind and in a mechanical manner.

The High Court clarified that a mere statement that the Presiding Officer had gone through the complaint and documents and had heard the complainant was insufficient to demonstrate the required judicial application of mind.

On this ground alone, the High Court found the impugned order to be vitiated and liable to be set aside.

4. Statutory Restrictions Under Special Enactments

The High Court further recognised that the complaint invoked numerous special enactments carrying distinct statutory preconditions.

The Court observed that:

  • sanction was required for prosecution of public servants under relevant provisions of the Haryana Development and Regulation of Urban Areas Act, 1975 and the Punjab Scheduled Roads and Controlled Areas (Restriction of Unregulated Development) Act, 1963;
  • cognizance under the Air (Prevention and Control of Pollution) Act, 1981, Environment (Protection) Act, 1986 and Water (Prevention and Control of Pollution) Act, 1974 was subject to statutory complaint or authorisation requirements;
  • cognizance under the Haryana Municipal Corporation Act, 1994 was subject to a complaint by the competent authority; and
  • the complaint could not bypass statutory restrictions merely by invoking Section 156(3) CrPC.

5. Absence of Prior Notice Under Environmental Laws

The Court specifically recorded that no prior notice had been issued by respondent No. 2 for prosecution of the petitioners as required under the Air (Prevention and Control of Pollution) Act, 1981, Environment (Protection) Act, 1986 and Water (Prevention and Control of Pollution) Act, 1974.

6. PMLA Investigation and Central Government Authorisation

The High Court observed that police could not take cognizance of offences punishable under Sections 3 and 4 of the Prevention of Money Laundering Act unless specifically authorised by the Central Government through a general or special order.

The Court noted that respondent No. 2 had failed to produce a copy of any such general or special order issued by the Central Government.

7. Final Decision

The High Court held that, having regard to the subject matter through which the complainant had attempted to invoke Section 156(3) CrPC against the petitioners, who were public servants, valid sanction or approval in accordance with law was required before proceeding further.

The Court recorded that no such previous sanction or approval had been obtained by the complainant for prosecuting the petitioners.

Consequently, the High Court held that the impugned order dated 3 July 2020 was illegal and set it aside insofar as the petitioners were concerned.

The petitions were allowed.

 

Important Clarification

The judgment provides several important legal clarifications:

A. Section 156(3) CrPC Power Is Judicial and Cannot Be Exercised Mechanically

An order directing registration of an FIR and investigation under Section 156(3) CrPC is not a routine administrative direction. The Magistrate or competent Court must demonstrate application of judicial mind to the allegations, statutory provisions, supporting documents and legal prerequisites.

A formulaic observation that the complaint and documents have been considered is not, by itself, sufficient.

B. Invocation of Numerous Penal Provisions Does Not Override Statutory Preconditions

Where a complaint invokes offences under special enactments, the Court must independently consider whether those enactments require:

  • prior sanction;
  • prior approval;
  • prior statutory notice;
  • complaint by a designated authority;
  • prosecution by an authorised officer; or
  • investigation by a specifically empowered agency or officer.

Section 156(3) CrPC cannot be used mechanically to circumvent such statutory safeguards.

C. Prior Sanction Under Section 19 of the Prevention of Corruption Act

Applying Anil Kumar vs M.K. Aiyappa and Another, the High Court held that an order directing investigation under Section 156(3) CrPC could not be passed against public servants in the absence of valid sanction under Section 19 of the Prevention of Corruption Act.

D. Effect of Reference in Manju Surana

The High Court expressly recognised that Manju Surana vs Sunil Arora referred the relevant question to a larger Bench. However, the Court clarified that the ratio of Anil Kumar had not been declared per incuriam or bad law merely because of such reference.

E. Special Statutes Must Be Examined Separately

The judgment demonstrates that when a single criminal complaint invokes the IPC, Prevention of Corruption Act, PMLA, environmental statutes, urban development laws and municipal legislation, the Court must examine the procedural and jurisdictional requirements of each applicable enactment rather than issue a blanket investigation direction.

 

Sections and Statutory Provisions Involved

Code of Criminal Procedure, 1973

  • Section 156(3) – Magistrate’s power to order police investigation
  • Section 197 – Prosecution of Judges and public servants
  • Section 200 – Examination of complainant
  • Sections 133, 143 and 461 – As invoked in the complaint

Prevention of Corruption Act, 1988

  • Sections 7, 8, 11, 12, 13(1)(d), 13(2) and 15, as referred to or discussed in the proceedings
  • Section 19 – Previous sanction for prosecution
  • Section 5(4) – Status and powers of Special Judge in relation to CrPC powers

Prevention of Money Laundering Act

  • Section 3 – Offence of money laundering
  • Section 4 – Punishment for money laundering

Indian Penal Code, 1860

The complaint invoked numerous provisions, including Sections:
166, 109, 188, 212, 268, 269, 278, 283, 285, 286, 287, 290, 291, 336, 337, 338, 339, 403, 406, 420, 463, 465, 467, 468, 471 and 120-B, along with other IPC provisions referred to during arguments.

Punjab Scheduled Roads and Controlled Areas (Restriction of Unregulated Development) Act, 1963

  • Sections 3, 6 and 12, as invoked in the complaint and discussed in relation to statutory sanction requirements

Haryana Development and Regulation of Urban Areas Act, 1975

  • Sections 3, 10, 11 and 12

Air (Prevention and Control of Pollution) Act, 1981

  • Sections 21, 22, 37, 38, 39, 40, 41 and 43

Environment (Protection) Act, 1986

  • Sections 11, 15, 16, 17, 19 and 25

Water (Prevention and Control of Pollution) Act, 1974

  • Sections 20, 32, 33, 41, 42, 43, 44, 45, 45A, 46, 47, 48 and 49

Haryana Municipal Corporation Act, 1994

  • Relevant provisions invoked in the complaint included Sections 250, 251, 260, 265, 309/310, 380, 382 and 384, as reflected in the proceedings

Other Enactments Referred to in the Complaint

  • Forest Conservation Act, 1980
  • Municipal Solid Waste regulatory framework
  • Benami transaction/property legislation

 

Link to download the order:https://mytaxexpert.co.in/uploads/1783408174_1408compressed.pdf

 

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