Mumbai: The Bombay high court stayed the registration of an FIR against Thane's former collector and SRA chief Vishwas Patil in the land allotment case registered against him by the ACB. Patil's counsel argued that as the allotment was made in the course of his duty, he cannot be held guilty. However, the petitioner argued that as the plot's beneficiary was Patil's wife, he was guilty. After hearing both contentions, the court kept the matter for final hearing and stayed registering of an FIR against Patil by the magistrate.
A division bench of Justices R. M. Savant and S. S. Shinde was hearing a writ petition filed by Patil challenging an order by the special judge of a lower court to register an FIR against him. The judge had ordered the ACB to register an FIR against Patil under the Prevention of Corruption Act and his wife and two developers Ramji Shah and Rasesh Kanakia. Patil had challenged the lower court order on the ground that as per an amendment to the criminal procedural law, sanction was required when there are accusations under the Indian Penal Code (IPC) against a public servant, past or present.
Patil was accused of allotting a plot of land at Malad to a development company, which had his wife as a partner, and the ACB had undertaken an investigation based on which the special court had ordered an FIR against him. The counsel for petitioner, Amit Desai, argued that the lower court order under section 156 (3) was bad in law. He cited the recent amendment, which barred a magistrate from directing registration of FIR without previous sanction of the government. The registration of FIR applied to offences where cognisance was barred by section 197 of CrPC. He said that since the complaint involved 409 and 120B of IPC, the bar under Section 197 applied and no court should take cognisance of offences committed by public servant in discharge of duty.
Advocate Aditya Pratap, appearing for the complainant Hitendra Yadav, submitted that the bar under 197 CrPC and the 156(3) of the amendment applied only to offences committed in discharge of duty.
He referred to Supreme Court judgements in State of HP versus MP Gupta and Harihar Prasad vs State of Bihar wherein the apex court held that offences under Section 409 and 120B IPC do not come within the discharge of duties by public servant. Hence no sanction was required for registering FIR.
