* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3790 OF 1997 1. Shri.Madhavrao Vithalraon Shejul 2. Smt.Shashikala Ramkrishna Revankar ......Applicants. V/s. 1. Shri. Suresh Giyachand Jodhani 2. State of Maharashtra .......Respondents. ===== Mr.Balkrishna D. Joshi, adv.for applicants. Mrs.A.A.Mane, APP for State-respondent. CORAM: SMT.R.P.SONDURBALDOTA, J. DATED: 16TH FEBRUAR Y, 2009. P.C. : 1. Heard counsel for both sides. 2. The applicants who are arrayed as accused nos.1 and 2 in the complaint filed by respondent no.1, seek, by the present application filed under Section 482 CrPC, that the same be quashed. Applicant no.1 at the relevant time was the Chief Officer of Ambernath Municipal Council. Applicant no.2 and respondent no.1 are the practising advocates. 3. Respondent no.1 filed Criminal Application No.288 of 1996 (R.C.No.128 of 1997) against one Vanita Vishe working as Despatch Clerk with Ambernath Municipal Council (accused no.1), one Bhagesh Ambokar, Octroi Superitendent, Ambernath Municipal Council (accused no.2), * 2 * Dadasaheb Kamble Ex-President and Councillor of Ambernath Municipal Council (accused no.3), applicant no.1, applicant no.2 and Ambernath Municipal Council through its President under section 323, 504, 506, 406, 408, 167, 182, 193, 211 and 500 read with Section 120-B and 34 IPC. Since, the present application is filed by accused nos.1 and 2 alone, it will not be necessary for this court to go into details of the allegations made against the other accused persons. In the lengthy complaint running into 15 pages, respondent no.1 at para-23 alleges against the applicants as follows :- 4. Respondent no.1 was representing accused no.3 in Election Petition No.12 of 1995. On 9th April 1996, accused no.3 desired to change his advocate and for that purpose made an application to the court. On receiving permission, he discharged respondent no.1 and engaged applicant no.2 as an advocate. Respondent no.1 complains that applicant no.2 ought not to have accepted the brief of accused no.3 when there were fees dcue from accused no.3 to him to the extent of about Rs.5,000/-. He alleges that by accepting the brief, applicant no.2 has put him to wrongful loss and has put herself to wrongful gain thereby cheating him and also committed criminal breach of trust, which respondent no.1 had put in accused no.3. Applicant no.2 has been representing accused no.6 in several of its matters. It is alleged that she gave a letter/complaint dated 20th May, 1996 to Ulhasnagar Taluka Bar Association alleging therein that certain papers and vakalatnamas concerning Ambernath Municipal Council are lying with respondent no.1, which he is not only misusing, but also blackmailing and threatening her. * 3 * 5. By the order dated 15th May, 1997 passed under Section 156(3) CrPC, on the complaint the learned Metropolitan Magistrate directed the police to investigate into the offence. After receiving the report from the police station, the learned Metropolitan Magistrate came to the conclusion that he had no jurisdiction to try the complaint. According to him, further investigation into the allegations was also required. Therefore, the complaint was returned to respondent no.1 for presentation to proper court. Thereafter, on 27th May, 1977 against filed the complaint in the same Ulhasnagar court. The learned Magistrate came to the conclusion that the case needs further investigation and directed the same under Section 156(3) CrPC. When the matter came up for hearing on 10th October, 1997 the learned Magistrate after perusing the police report dated 30th September, 1997 held that there was sufficient ground for prosecuting all the accused and issued process under Section 323, 504, 506, 506(II), 507, 408, 500, 162, 182, 193 read with Section 34 IPC. Being aggrieved by that order, the applicants have filed the present application. 6. Mr.Joshi, learned counsel for the applicants submits that the order issuing process against the applicants is illegal and bad in law, firstly because the learned Magistrate failed to take into consideration the fact that on similar ground a direct complaint was filed by respondent no.1 against the applicant no.1 in the court of Judicial Magistrate First Class, Ulhasnagar being Criminal Case No. 123 of 1996. In that case, an order was passed issuing process against applicant no.1 on 7th September, 1996. He had challenged the said order by filing * 4 * Criminal Revision Application No. 176 of 1996 in the Sessions court of Kalyan and the learned Sessions Judge after hearing both the sides had directed the trial court not to pass any order except the order towards bail and of giving further dates in the matter. Despite the direction, the learned Magistrate relying upon similar grounds had passed impugned order directing issuance of process. Perusal of the impugned order shows that the same does not make any reference to the order passed by the learned Sessions Judge. 7. Mr.Joshi next submits that the basic ingredients of the offence alleged against the applicants herein, have not been made out in the complaint and therefore the impugned order deserves to be quashed and set aside. It is alleged that the applicants have defamed respondent no.1. However, the actual words alleged to be forming defamatory substance are not incorporated in the complaint. In the absence thereof, case under Section 500 Cr.P.C. cannot be said to have been made out. As regards the allegations of cheating and criminal breach of trust, merely because the applicant no.2 accepted a brief after respondent no.1 was given discharge by a client it cannot be said that there is any deceit or dishonest or fraudulent intentions on the part of applicant no.2 in accepting the brief. 8. Applicant no.1 is the Chief Officer of Ambernath Municipal Council and as such he is a public servant. He cannot be removed from his office save by or with the sanction of the government. In that circumstance, sanction under Section 197 CrPC ought to have been obtained by respondent no.1. Without such sanction, the proceedings against * 5 * applicant no.1 cannot be entertained. Thus, it is seen that the proceedings as filed against the applicants above cannot be sustained. Hence the order. O R D E R (i) The application is allowed. (ii) The order dated 10th October, 1997 issuing process under Sections 323, 504, 506, 506(2), 507, 408, 500, 167, 182, 193 read with Section 34 IPC as against the applicants is hereby set aside. The proceedings of Criminal Case No.128 of 1997 pending in the court of Judicial Magistrate First Class, Ulhasnagar are hereby quashed and set aside as against the applicants. [JUDGE]