Prior sanction under Section 197 CrPC and Section 19 PC Act mandatory before directing investigation under Section 156(3) CrPC or registering FIR against public servant for official duty acts; absence renders order and FIR void.

JUDGMENT :

ASHWIN D. BHOBE, J.

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 11^th 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 18^th 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 11^th 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