Case Note & Summary
The applicant, Mangesh Anant Kudalkar, a Member of the Legislative Assembly, challenged an order dated 17th December 2025 passed by the learned Special Judge, Greater Bombay, forwarding a complaint to the Assistant Commissioner of Police, Anti-Corruption Bureau, Mumbai, under Section 175(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) read with Section 17 of the Prevention of Corruption Act, 1988. The complaint alleged that a hall and commercial premises were unauthorizedly constructed on plots reserved by MHADA for amenity space and garden, and that the applicant misused his official position. The applicant argued that the Special Judge could not forward the complaint without prior sanction under Section 17A of the PC Act, which mandates prior approval for inquiry or investigation into offences against a public servant. The State opposed, contending that the complaint disclosed a cognizable offence and that Section 17A did not apply at the stage of forwarding under Section 175(3) BNSS. The High Court analyzed Section 17A of the PC Act and held that it applies to any inquiry or investigation, including forwarding of a complaint under BNSS. Since no sanction was obtained, the order was without jurisdiction. The court allowed the revision application, set aside the impugned order, and directed that the complaint be returned to the Special Judge for appropriate action in accordance with law.
Headnote
A) Criminal Procedure - Forwarding of Complaint under Section 175(3) BNSS - Requirement of Sanction under Section 17A PC Act - The Special Judge forwarded a complaint against a public servant (MLA) to the police for investigation under the PC Act without obtaining prior sanction under Section 17A of the Prevention of Corruption Act, 1988. The High Court held that such forwarding is invalid as Section 17A mandates prior approval for any inquiry or investigation into offences alleged against a public servant. The order was set aside. (Paras 1-6)
B) Prevention of Corruption Act - Sanction under Section 17A - Applicability to Complaints Forwarded under BNSS - The court held that the requirement of prior sanction under Section 17A of the PC Act applies even when a complaint is forwarded under Section 175(3) of BNSS for investigation. Without such sanction, the forwarding order is without jurisdiction. (Paras 3-6)
Issue of Consideration
Whether the Special Judge could forward a complaint under Section 175(3) of BNSS for investigation under the Prevention of Corruption Act, 1988, without prior sanction under Section 17A of the PC Act, and whether the complaint disclosed a cognizable offence against a public servant.
Final Decision
The High Court allowed the revision application, set aside the impugned order dated 17th December 2025, and directed that the complaint be returned to the Special Judge for appropriate action in accordance with law.
Law Points
- Section 175(3) BNSS
- Section 17A Prevention of Corruption Act
- 1988
- Sanction requirement for public servants
- Forwarding of complaint without sanction invalid
Case Details
2026 LawText (BOM) (07) 45
Criminal Revision Application No. 539 of 2025
Mr.A.P. Mundargi, Senior Advocate a/w Ms.Pravada Raut i/b Mr.Prashant Badole, for the Applicant; Mr.S.S. Pednekar, APP for Respondent-State; Mr.Vijay Niwate, H.C., ACB, Mumbai.
The State of Maharashtra & Anr.
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Nature of Litigation
Criminal Revision Application challenging an order forwarding a complaint under Section 175(3) BNSS for investigation under the Prevention of Corruption Act, 1988.
Remedy Sought
The applicant sought to quash the order dated 17th December 2025 passed by the Special Judge, Greater Bombay, forwarding the complaint to the police for investigation.
Filing Reason
The applicant alleged that the Special Judge could not forward the complaint without prior sanction under Section 17A of the PC Act.
Previous Decisions
The Special Judge had forwarded the complaint under Section 175(3) BNSS to the Assistant Commissioner of Police, ACB, Mumbai.
Issues
Whether the Special Judge could forward a complaint under Section 175(3) BNSS for investigation under the PC Act without prior sanction under Section 17A of the PC Act.
Whether the complaint disclosed a cognizable offence against a public servant.
Submissions/Arguments
The applicant argued that Section 17A of the PC Act mandates prior approval for any inquiry or investigation into offences alleged against a public servant, and the forwarding order without such sanction is invalid.
The State argued that the complaint disclosed a cognizable offence and that Section 17A does not apply at the stage of forwarding under Section 175(3) BNSS.
Ratio Decidendi
Section 17A of the Prevention of Corruption Act, 1988 mandates prior approval from the competent authority before any inquiry or investigation is conducted into offences alleged against a public servant. This requirement applies even when a complaint is forwarded under Section 175(3) of BNSS for investigation. Without such sanction, the forwarding order is without jurisdiction and invalid.
Judgment Excerpts
The challenge in this Revision Application is to the impugned order passed by the learned Special Judge, Greater Bombay, dated 17th December 2025, whereby the complaint is forwarded to the Assistant Commissioner of Police, Anti-Corruption Bureau, Mumbai, under Section 175(3) of the Bharatiya Nagarik Suraksha Sanhita (‘BNSS’ for short), in view of the Section 17 of the Prevention of Corruption Act, 1988.
It is alleged that a hall along with commercial premises has been unauthorizedly constructed on the plots reserved by MHADA for amenity space and garden. It is further alleged that the Applicant, who is member of legislative assembly by misusing his official position, carried out the said construction.
Procedural History
The complaint was filed before the Special Judge, Greater Bombay, who on 17th December 2025 forwarded it under Section 175(3) BNSS to the Assistant Commissioner of Police, ACB, Mumbai, for investigation under the PC Act. The applicant filed a Criminal Revision Application before the High Court challenging this order.
Acts & Sections
- Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS): 175(3)
- Prevention of Corruption Act, 1988: 17, 17A
