Allowed

Sudhakar Gunjaji Wadje v. the State of Maharashtra and Others

Bombay HC8 Sept 2023WP/149/2023

Case brief

AI extract

What is this about?

A writ petition challenged an impugned order passed by a Magistrate directing investigation under Section 156(3) against a public servant without prior sanction. The Court held that sanction under Section 197 CrPC is a pre-condition under Section 156(3) Maharashtra Amendment. The order was unsustainable.

What did the court decide?

Writ petition allowed; impugned order of the learned Magistrate is quashed.

Sudhakar Gunjaji Wadje Vs the State of Maharashtra… — Criminal Trial and Appeal | Bombay HC (2023)

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916-WP-149-2023.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO.149 OF 2023

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SUDHAKAR GUNJAJI WADJE
VERSUS

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THE STATE OF MAHARASHTRA AND OTHERS

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...

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Advocate for Petitioner : Mr. U. B. Deshmukh
APP for Respondent No. 1: Mr. S. P. Sonpawale
Advocate for Respondent Nos. 2 : Mr. Akram Inamdar h/f

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Mr. S. S. Kazi

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...

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CORAM:R.M. JOSHI, J

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DATE:SEPTEMBER 08, 2023

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PER COURT :

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1.At the outset, learned Counsel for the

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Respondent No. 2/Original Informant raises objection
about maintainability of the Petition.

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2.Perusal of the record indicates that without
obtaining sanction application under Section 153(3) of
Cr.P.C came to be filed before learned Magistrate.
Learned Magistrate also in complete ignorance of the
relevant provisions of law, has passed the impugned
order. On that count the said order itself is not

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tenable. Hence, objection with regard to the
maintainability of the Petition, is rejected.

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3.Admittedly, Petitioner is a public servant. As

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Page 1 of 4

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916-WP-149-2023.odt

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pointed out by the learned Counsel for the Petitioner
that there are certain orders passed in connection with
the crime in question, it is his submission that on the
basis of preliminary inquiry, the Petitioner was called
upon to deposit an amount of alleged misappropriation.
The said order was challenged by filing Writ Petition
No. 13242/2021 wherein this Court has passed
conditional order directing him to deposit a sum of Rs.
3,50,000/-. Later on Petition came to be disposed of
with observation that on the basis of preliminary
objection, no action can be taken and for that purpose
the report of Divisional Department Enquiry is
essential. It is the grievance of the Petitioner that
private individual having no concern has filed
application under Section 156(3) of Cr.P.C. before
learned Magistrate and without obtaining any sanction,
learned Magistrate has passed order of issuing
direction in that regard.

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4.Learned Counsel for Respondent No. 2 submits
that an application was given to the Collector on
26.10.2021 asking the Collector to take action in this
regard and to lodge report. It is submitted that since

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Page 2 of 4

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916-WP-149-2023.odt

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the Collector has failed to lodge report, it is a
deemed sanction and hence, application under Section
156(3) of Cr.P.C is tenable so also order impugned is
sustainable.

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5.There is no dispute about the fact that the
Petitioner is a public servant and the provisions of
Section 197 of Cr.P.C. has application. Perusal of
Section 156(3), Maharashtra Amendment, clearly shows
that no Magistrate shall order an investigation under
this section against a person who is or was a public
servant as defined under any other law for the time
being in force, in respect of the act done by such
public servant while acting or purporting to act in the
discharge of his official duties, except with the
previous sanction under section 197 of the Code of
Criminal Procedure, 1973 or under any law for the time
being in force. It is thus, clear that for the purpose
of maintaining such application obtainment of sanction
is pre-condition.

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6.As far as present case is concerned, there is
absolutely no material on record to indicate that at no
point of time any sanction was sought for the

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Page 3 of 4

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916-WP-149-2023.odt

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prosecution of the Petitioner as contemplated under
Section 197 of Cr.P.C. Letter referred by the Counsel
for the Respondent/informant is not an application for
obtaining sanction of the prosecution. Thus, for non
compliance of Section 156(d) proviso to Section 156,
learned Magistrate ought not to have taken cognizance
of application and should not have passed order in this
regard.

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7.In view of above, there is merit in the
Petition. Hence, Writ petition is allowed in terms of
prayer clause ‘B’.

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Malani

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Page 4 of 4

Sudhakar Gunjaji Wadje v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Sudhakar Gunjaji Wadje v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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