Mumbai: In a strongly worded “bold order”, a sessions court has held that the time has come to give strong message to executive officers and bureaucrats that their omission and inaction to take proper action at appropriate time is causing serious issues regarding the country’s as well as the state’s economy.Setting aside a magistrate’s order and directing the initiation of criminal proceedings against several high-ranking Maharashtra Anti-Corruption Bureau (ACB) officers, some of them now retired, for “willfully and deliberately” failing to register an FIR in a Rs 14,000-crore scam which allegedly involved Maharashtra Housing and Area Development Authority (Mhada) officials, additional sessions judge Mujibodeen S Shaikh said, “Now, the time has also come to make it clear that no one is above the law and law does not protect the white-collar persons who are using their office or designation to protect the officers deeply involved in wrongful gain for them and wrongful loss for the state.”The judge also said that the time has come to pass a “bold order” to teach a lesson to high-ranking public servants that if they show utter disregard for the law by avoiding their official duties, their inaction can constitute a criminal offence. “The…magistrate is… directed to restore the complaint and to proceed further against the accused… for recording of evidence of the complainant and witnesses [evidence before charge] after passing the issue process order against the accused,” the judge said in an order pronounced earlier this month.The ruling came in a revision application filed by activist Kamlakar Shenoy, who alleged that despite clear evidence of cognizable offences involving 389 developers, the ACB officers kept his 2016 complaint in abeyance for over two years.Shenoy, a 65-year-old Mazgaon businessman, moved the sessions court in 2022 against the magistrate’s dismissal of his 2017 complaint. Shenoy argued that the ACB officers disobeyed the mandate of law by seeking government opinions instead of registering an FIR.Appearing in person he submitted that the officers, including a former director general of police and an additional police commissioner, appeared to be “protecting and shielding” Mhada officials who caused a loss of Rs 14,000 crore by failing to recover surplus built-up area from developers.In his order, the judge said that the magistrate is to pass order of “issue process” against the accused under Indian Penal Code sections 166A (public servant disobeying direction under law), 217 (public servant disobeying law to save a person from punishment or property from forfeiture), 218 (public servant framing an incorrect record) and 34 (common intention). The judge noted that it has become crystal clear that under the garb of preliminary inquiry continued years for together, the respondents have shown utter disregard to the mandate of law and provisions, therefore, prima facie they have committed offences under the above sections.“The anti-corruption laws have been enacted; however,effective and efficient implementation is lacking on account of the fact that corrupt activities are widespread in public administration. Acts of commission and omission, lack of expertise and delay in investigation are the vital reasons,” the judge said.Finding merit in Shenoy’s contentions, the judge noted that the earlier dismissal of the complaint by the magistrate was “skin saving and erroneous”. The judge held that the acts of the officers in avoiding their statutory duties under the guise of preliminary inquiries constituted a criminal offence.The court was particularly critical of the ACB’s decision to wait for an opinion from the housing department before acting against Mhada officials. The judge remarked that since Mhada functions under the housing department, it was unlikely that the principal secretary would facilitate the prosecution of his own subordinates. The judge stated, “The reason for not taking any action against the developers is best known to the Mhada officials. However, from the facts and circumstances it can be inferred that Mhada officials might have vested interest therefore, they have not taken any action against the builders…. So also, the principal secretary might have vested interest therefore, he has not given permission to take action or he himself has not taken any action against the Mhada officials who are deeply involved in wrongful gain.”Refusing to grant the ACB officers protection under Section 197 of the Code of Criminal Procedure, which requires government sanction to prosecute public servants, the court ruled that disobeying the law and fabricating records does not fall within the ambit of official duties.
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