Bombay HC sets aside dubious circular

When dozens of corrupt officials of the Bombay Municipal Corporation, the Maharashtra Housing and Area Development Authority, the Registrar of Cooperatives, and the Mumbai Police colluded with crooked re-developers and the managing committee of Tilaknagar Cooperative Society to give Sanjraj Mangeshkar sleepless nights, they never imagined that he could have them booked under the anti corruption laws. But that is exactly what he succeeded in doing.

Mangeshkar is a small businessman who travels throughout Maharashtra. He lives in Tilaknagar, in a building constructed by MHADA. In 2005, his society's managing committee decided to go for redevelopment of the relatively new building, invited bids from builders and finalised one without due process despite dissent from the Mangeshkar family and other members. In collusion with the managing committee, Mumbai's Municipal Corporation and MHADA issued an eviction notice citing the building's dilapidated condition, although they had no basis to support such a conclusion.

Later, a new builder illegally entered the scene without bidding, and he partially demolished it even as the Mangeshkar refused to vacate. Then the police tried to force the Mangeshkar family to sign an agreement with the builder.

Mangeshkar's attempts to bring the colluding officers to book were thwarted by a decades-old circular of the Home Department of the state government. This circular, which the police have often cited as the reason why they cannot prosecute corrupt public officials, says that when an official is accused of corruption, s/he must be first be scrutinised within the department, and only if the department believes there is a prima facie case of corruption, will the matter be taken up by the police or other investigating agencies.

After desperately pursuing the matter for years with complaints, RTI applications and a writ petition in the Bombay High Court, Mangeshkar finally has the citizen's brahmastra within his grasp. The Bombay High Court ruled in September 2009 that the police would have to pursue cases against corrupt officials, without having to seek government permission for such investigation. This ruling has enabled Mangeshkar to register an FIR with the Anti Corruption Bureau in February 2010 against 28 officials, builders, police personnel and managing committee members.

In his writ petition before the court, Mangeshkar asked the judges to stay the above-mentioned government circular, which has been in force since 1972. This document is repeatedly cited by the police as a reason for not registering citizens' complaints against officials. The effect of this circular has been to allow corrupt officials to function with impunity from the prosecution system. Now, Mangeshkar's successful plea in the court has now opened the door for thousands of other aggrieved citizens like him in their quest for justice.

The order by Justice Bilal Nazki and A R Joshi noted, "According to this circular when there is an allegation of corruption against an officer, before the Anti Corruption Department starts investigation it is required to refer the matter to the department to which such officer belongs, for a preliminary enquiry. We are of the prima facie view that once the offence is disclosed under the Prevention of Corruption Act, then the Investigating Agency under the Prevention of Corruption Act is bound to investigate the matter. Therefore, any circular placing restrictions on their power which is available to them under the Prevention of Corruption Act and the Criminal Procedure Code appears to be illegal.

"On various occasions the respondents have sought time to argue the matter finally. Today also an adjournment is sought. In this view of the matter, we admit this petition and direct that the circular dated 21.2.1972 shall not be implemented by the Anti Corruption Agency and whenever a complaint is received by them, they shall investigate the matter irrespective of the circular, in accordance with law."

This order relates to a Public Interest Litigation filed in 2008 by Anna Kishanrao More, with which Sanjraj's matter (Criminal Writ Petition 1845/09 and Criminal Application 402/09) was clubbed for hearing. The PIL and Sanjraj's petition are scheduled to be heard on June 10, and it is hoped that the dubious circular will be permanently quashed by the High Court. This will put a seal of finality on the new-found power of Maharashtra's citizens to put corrupt officials, cops and others under the scanner.