Facts of the Case

The High Court dealt with 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.

By the impugned order, a criminal complaint titled Raman Sharma vs K. Makrand Pandurang and Others was sent to Police Station Sector-10-A, Gurugram, for lodging of an FIR and investigation. The petitioners, who were public servants holding different administrative and planning-related posts, challenged the order and consequential proceedings arising from it.

The petitioners included IAS, HCS, Town Planning and other public officials serving in various capacities, including the Municipal Corporation, Haryana Shehri Vikas Pradhikaran and the Town and Country Planning Department.

The underlying complaint contained allegations relating primarily to Sector 94, Gurugram. According to the complainant, illegal possession, unauthorised construction, factories, warehouses, residential and commercial buildings had allegedly come up on land notified as “Open Space” or falling within a green area/green belt.

The complaint alleged, among other things, that:

  1. Encroachment, illegal construction, spilling of garbage, collection of stones, cement and chemicals, and commercial activities were taking place on land reserved as a green area in the notified open space of Sector 94, Gurugram.
  2. Illegal factories, warehouses, residential buildings and commercial structures had allegedly been raised in the notified open space.
  3. Sector 94 had allegedly been notified as open space under the Gurgaon-Manesar Urban Complex Plan Scheme, where construction was prohibited, and the area adjoining the Pataudi-Gurugram Road was also stated to fall within the green belt.
  4. Land grabbers allegedly raised unauthorised constructions in violation of planning and urban development laws.
  5. Factories, warehouses and construction sites allegedly caused environmental pollution by discharging waste and operating without adequate safety measures.
  6. It was alleged that certain entities had wrongfully obtained GST registrations at the concerned addresses, with an apprehension that prescribed GST might not have been paid.
  7. Sale deeds were allegedly registered in collusion with officials and staff of the concerned Tehsil in relation to land stated to be notified under Section 7A by the Town and Country Planning Department.
  8. The complaint alleged misuse of official powers, illegal registration of sale deeds, corruption, benami property transactions, money laundering, public nuisance, endangerment to human life and conspiracy.
  9. State officials were accused of supporting or failing to prevent the alleged illegal acts.
  10. It was further alleged that despite repeated requests, the police had not registered an FIR, necessitating recourse to Section 156(3) Cr.P.C.

On 3 July 2020, the learned Sessions Judge directed that the complaint be sent to Police Station Sector-10-A, Gurugram, for lodging of an FIR and investigation, observing that the matter required investigation and that registration of an FIR was necessary.

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) Cr.P.C. against public servants could be passed in the absence of valid previous sanction under Section 19 of the Prevention of Corruption Act, 1988.
  2. Whether the learned Sessions Judge had properly applied judicial mind before directing registration of an FIR and investigation.
  3. Whether statutory restrictions on cognizance, prosecution or investigation under the Prevention of Corruption Act, PMLA, environmental statutes, urban development laws and municipal legislation had been duly considered.
  4. Whether the impugned order was sustainable when the complaint invoked numerous offences governed by special statutory requirements concerning sanction, authorisation, prior notice or complaint by a competent authority.
  5. Whether a mere statement that the Court had gone through the complaint and documents and heard the complainant was sufficient compliance with the requirement of application of mind under Section 156(3) Cr.P.C.
  6. Whether the complaint and order could validly proceed against public servants without obtaining the sanction/approval required by law.

 

Petitioner’s Arguments

The petitioners contended that they were public servants and that the impugned order was legally unsustainable for several reasons.

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

It was argued that under Section 19 of the Prevention of Corruption Act, 1988, no Court could take cognizance of specified offences punishable under the Act against public servants without previous sanction of the competent Central Government or State Government, as applicable.

The petitioners specifically relied upon the statutory protection relating to offences under Sections 7, 11, 13 and 15 of the Prevention of Corruption Act.

2. Restriction on Police Investigation Under PMLA

The petitioners submitted that in relation to offences under Sections 3 and 4 of the Prevention of Money Laundering Act, the police could not investigate unless specifically authorised by the Central Government through a general or special order and subject to prescribed conditions.

3. Sanction Under Urban Development Laws

It was argued that prosecution for offences under Sections 3, 10, 11 and 12 of the Haryana Development and Regulation of Urban Areas Act, 1975 could not be instituted without previous sanction of the Director or an officer authorised in writing.

A similar requirement was asserted regarding offences under Sections 3, 6 and 12 of the Punjab Scheduled Roads and Controlled Areas (Restriction of Unregulated Development) Act, 1963.

4. Statutory Requirements Under Environmental Laws

The petitioners argued that 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 complying with the prescribed prior notice requirement.

Similar objections were raised under:

  • Environment (Protection) Act, 1986; and
  • Water (Prevention and Control of Pollution) Act, 1974.

5. Haryana Municipal Corporation Act

It was contended that cognizance of specified offences 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.

6. Section 197 Cr.P.C.

The petitioners further contended that, in respect of IPC allegations connected with acts performed by public servants in discharge of official duties, the protection and sanction requirement under Section 197 Cr.P.C. was attracted.

7. No Prima Facie Offence

It was argued that no prima facie offence was made out against the petitioners under various IPC provisions invoked in the complaint, including provisions relating to abetment, conspiracy, criminal breach of trust, cheating, forgery and use of forged documents.

8. Lack of Application of Mind

The petitioners strongly contended that the learned Sessions Judge passed the impugned order casually and mechanically without proper application of judicial mind.

Reliance was placed upon Maksud Saiyed vs State of Gujarat and Others, (2008) 5 SCC 668, for the proposition that where jurisdiction is exercised on a complaint under Section 156(3) or Section 200 Cr.P.C., judicial application of mind is necessary and criminal law cannot be set into motion as a matter of course.

9. Reliance on Anil Kumar vs M.K. Aiyappa

The petitioners relied upon Anil Kumar vs M.K. Aiyappa and Another, (2013) 10 SCC 705, contending that in the absence of sanction from the competent authority, an order under Section 156(3) Cr.P.C. directing investigation against public servants could not legally be passed.

10. Jurisdictional and Locus Standi Objections

It was further argued that the allegations related to Sector 94, Gurugram, which allegedly fell under the jurisdiction of GMDA and outside the municipal limits of the Municipal Corporation, Gurugram.

The petitioners also contended that the complaint was in the nature of a public interest litigation without proper disclosure of the complainant’s credentials, locus standi or individual prejudice.

 

Respondent’s Arguments

State’s Stand

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

Complainant/Respondent No. 2’s Stand

Respondent No. 2 opposed the petitions and argued that:

  1. There was no illegality or perversity in the impugned order.
  2. The order had been passed in accordance with law after proper application of mind.
  3. The complainant was a resident of Gurugram and was aggrieved by alleged illegal constructions raised by land grabbers and builders in violation of various statutory provisions.
  4. The public servants named in the complaint had allegedly failed to act against illegal activities being carried out by builders and land grabbers.
  5. The complainant possessed sufficient locus standi to initiate the complaint.
  6. No ground existed for interference by the High Court.

 

Court Order / Findings

The High Court allowed the petitions and set aside the impugned order dated 3 July 2020 qua the petitioners.

1. Statutory Restrictions Could Not Be Ignored

The High Court observed that no Court could take cognizance of specified offences under the Prevention of Corruption Act against public servants without previous sanction of the concerned Government.

The Court also recognised that:

  • Police could not investigate offences under Sections 3 and 4 of PMLA unless specifically authorised by the Central Government in that regard.
  • Sanction was required for prosecution under relevant provisions of the Haryana Development and Regulation of Urban Areas Act, 1975.
  • Sanction requirements also applied under the Punjab Scheduled Roads and Controlled Areas (Restriction of Unregulated Development) Act, 1963.
  • Cognizance under specified environmental statutes was subject to complaints by competent Boards, authorised officers or compliance with prescribed prior notice requirements.
  • Cognizance under the Haryana Municipal Corporation Act, 1994 was subject to a complaint by the competent authority.

2. Absence of Required Prior Notice

The Court noted that no prior notice had been issued by respondent No. 2 for prosecution of the petitioners as required under the Air Act, Environment Protection Act and Water Act.

3. No Central Government Authorisation Shown Under PMLA

The High Court observed that respondent No. 2 had failed to produce any general or special order of the Central Government authorising police investigation into offences punishable under Sections 3 and 4 of PMLA.

4. Special Judge’s Powers and Section 19 Sanction

The Court acknowledged that a Special Judge is deemed to be a Magistrate under Section 5(4) of the Prevention of Corruption Act, 1988 and is clothed with magisterial powers under the Cr.P.C.

However, the Court held that Section 19 of the Prevention of Corruption Act prohibited cognizance of offences under Sections 7, 11, 13 and 15 without previous sanction of the concerned Government.

5. Anil Kumar vs M.K. Aiyappa Followed

The High Court examined the Supreme Court decision in Anil Kumar vs M.K. Aiyappa and Another, (2013) 10 SCC 705, where the question 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) Cr.P.C. even at the pre-cognizance stage.

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

6. Effect of Manju Surana vs Sunil Arora

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

Crucially, the High Court clarified that while making the reference to a larger Bench, the Supreme Court had not declared the ratio in Anil Kumar vs M.K. Aiyappa to be per incuriam or bad law.

Accordingly, the High Court applied the ratio in Anil Kumar.

7. Investigation Under Section 156(3) Cr.P.C. Could Not Be Directed Without Valid Sanction

The High Court held that, in light of the ratio in Anil Kumar, an order directing investigation under Section 156(3) Cr.P.C. could not be passed in the absence of valid sanction under Section 19 of the Prevention of Corruption Act, 1988.

8. Mechanical Exercise of Power Under Section 156(3) Cr.P.C. Is Impermissible

The High Court further held that even at the stage of Section 156(3) Cr.P.C., there must be application of mind by the Magistrate while directing investigation.

The concerned Court could not act mechanically or mindlessly.

The application of mind must be reflected in the judicial order itself.

9. Mere Formal Statement Is Not Sufficient

The High Court found that the impugned order had been passed without due application of mind and in a mechanical manner.

The Court specifically clarified that a mere statement by the Presiding Officer that he had gone through the complaint and documents and heard the complainant was not sufficient to demonstrate the legally required application of mind.

On this ground alone, the impugned order was held to be vitiated and liable to be set aside.

10. Sanction/Approval Required Before Proceeding Further

Considering the subject matter through which the complainant attempted to invoke Section 156(3) Cr.P.C. against the petitioners, who were public servants, the High Court held that valid sanction/approval as required by law was necessary before proceeding further.

Admittedly, no such previous sanction/approval had been sought by the complainant to prosecute the petitioners.

Final Order

The High Court concluded that the impugned order dated 3 July 2020 was illegal and set it aside qua the petitioners.

The connected petitions were allowed.

 

Important Clarification

The judgment contains several legally significant clarifications:

1. Section 156(3) Cr.P.C. Power Is Judicial, Not Mechanical

A Court dealing with an application under Section 156(3) Cr.P.C. cannot merely forward a complaint to the police for FIR registration and investigation as a routine exercise. The order must demonstrate meaningful judicial application of mind.

2. Mere Reference to Complaint and Documents Is Insufficient

A statement that the Presiding Officer has gone through the complaint, considered the documents and heard the complainant does not, by itself, establish sufficient application of mind.

3. Public Servants and Prior Sanction

Where allegations against public servants invoke offences under the Prevention of Corruption Act and other statutes carrying specific sanction or approval requirements, those statutory safeguards cannot be bypassed through a mechanically passed Section 156(3) Cr.P.C. order.

4. Larger Bench Reference Did Not Automatically Overrule Existing Precedent

Although Manju Surana vs Sunil Arora, (2018) 5 SCC 557 referred the question concerning prior sanction and Section 156(3) Cr.P.C. to a larger Bench, the High Court expressly noted that Anil Kumar vs M.K. Aiyappa had not been declared per incuriam or bad law.

Therefore, the High Court followed the existing ratio in Anil Kumar.

5. Special Statutes Retain Their Procedural Safeguards

Where special legislation prescribes:

  • previous sanction,
  • prior approval,
  • specific authorisation,
  • complaint by a designated authority, or
  • mandatory prior notice,

such statutory conditions must be considered before criminal proceedings are directed.

 

Sections and Statutory Provisions Involved

Code of Criminal Procedure, 1973

  • Section 156(3) – Magistrate’s power to order investigation
  • Section 197 – Prosecution of Judges and public servants
  • Sections 133, 143 and 461 – Also referred to in the complaint

Prevention of Corruption Act, 1988

  • Sections 7, 8, 11 and 12
  • Section 13(1)(d)
  • Section 13(2)
  • Section 15
  • Section 19 – Previous sanction for prosecution
  • Section 5(4) – Status/powers of Special Judge in the context discussed by the Court

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 109, 120-B, 166, 188, 212, 268, 269, 278, 283, 285, 286, 287, 290, 291, 336, 337, 338, 339, 403, 406, 420, 463, 465, 467, 468 and 471

The petitioners also addressed the alleged non-applicability of various IPC provisions referred to during arguments.

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

  • Sections 3, 6 and 12

Haryana Development and Regulation of Urban Areas Act, 1975

  • Sections 3, 10, 11 and 12

Haryana Municipal Corporation Act, 1994

Relevant provisions invoked in the complaint included:

  • Sections 250, 251, 260, 265, 309/related provision as recorded in the proceedings, 310, 380, 382 and 384

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

Forest Conservation Legislation

Relevant provisions were also invoked in the underlying complaint as recorded in the judgment.

Other Laws/Regulatory Frameworks Referred To

  • Municipal Solid Waste (Management and Handling) Rules, 2000
  • Benami transaction/property legislation

 

Link to Download the Order-https://mytaxexpert.co.in/uploads/1783415337_1416compressed.pdf

Disclaimer

This content is shared strictly for general information and knowledge purposes only. Readers should independently verify the information from reliable sources. It is not intended to provide legal, professional, or advisory guidance. The author and the organisation disclaim all liability arising from the use of this content. The material has been prepared with the assistance of AI tools.