:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPEALLATE JURISDICTION WRIT PETITION NO.441 OF 2001 Prashant S. Khandkekar. ..Petitioner. Vs. The State of Maharashtra and ors. ..Respondents. Mr.P.B.Shah for the Petitioner. Mr.P.A.Pol,APP. for the State. Ms. J. Parab holding for Mrs. Revati Mohite Dere for the Respondent No.2. CORAM : R.S. MOHITE, J. DATED : 09.4.2008. P.C. P.C. P.C. 1. This is the writ petition impugning an order issuing process passed by the Civil Judge, J.D. Wai in Criminal Case No.5 of 2001. On perusal of the complaint, it is the allegation of the complainant that he is the owner of the apartment on the first floor building named as Sai Prasad. One Mr. S.S. Biramane is the owner of this building. The accused at the relevant time was working as Chief Officer of the Panchgani Municipal Council. The complainant states that he has issued commencement certificate. It is the case of the complainant himself in the complaint that the building has been constructed in violation of the development control rules. It appears that there was a public interest litigation and certain directions were given in relation to illegal constructions in Panchgani. It :2: appears that thereafter accused in the official capacity as Chief Officer issued demolition notice on 18.12.1999 and passed order on 3.4.2000 outlining various illegalities and directing demolition. It further appears that the complainant himself filed a suit being R.C.S.No.30/2000 wherein the Civil Judge, Wai Court has passed an order and plaint has been returned. It appears to be the contention of the complainant that the order dated 3.4.2000 passed by the accused was malicious. 2. I have perused the copy of the order dated 3.4.2000 which is annexed. The said order discloses that the complainant’s building is not constructed as per the rules and therefore, accused has passed the demolition order of area which is found to be illegal. It cannot be said to be malicious act on the part of the accused. Apart from that it is an official act. The order which is said to be malicious can be challenged in an appropriate proceeding before the court/authorities. The accused will be respondent in such proceeding. The remedy resorted to by the complainant is to file a civil suit challenging the order passed by the accused. This proceeding has been found to be without jurisdiction. It is always open to the complainant to challenge the order in an appropriate proceeding. The complaint does not contain any material against the accused to even prima facie indicate a deliberate and malicious act :3: against the complainant. In my view, if the complaint is read as it is, it does not contain any material which would warrant issuance of process under Section-219 of the I.P.C. In the circumstances, writ petition is allowed in terms of prayer clause (a). It is made clear that the observations made in this order will not come in the way of the complainant in case the complainant choses to challenge the order which has been passed by the accused. Petition is disposed of. (R. S. MOHITE, J.)