1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH NAGPUR Criminal Application No. 1204/2009 Shri Ganesh s/o Bapuraoji Umate, aged about 50 years, Occ. Service, r/o Karla Road, Tq. Dist. Wardha .. APPLICANTS .. Versus .. 1. The State of Maharashtra, thr. its Police Station Officer, Police Station, Kharangana, Tq. Dist. Wardha. 2. Janikrao Dinbaji Hadke, aged 70 years, Occ. Cultivator r/o Kamthi, Tq. Dist. Wardha ..NON APPLICANTS --------------------------------------------------------------------------------- Mr. V. M. Kitey, Advocate for applicant. Mr. R. D. Dharmadhikari, Advocate for non applicant no.2. Mr. D. B. Yengal, A.P.P. for non applicant no.1 --------------------------------------------------------------------------------- CORAM:- R. Y. GANOO, J. DATED :- 14 th September,2009 J U D G M E N T 1. Rule. Rule returnable forthwith. Heard finally by consent of the parties. 2. Non applicant no.2 filed complaint against the present applicant and two others in the Court of Judicial Magistrate First Class, Arvi alleging therein that the applicant and two others have committed an offence 2 punishable under Sections 323, 298, 448, 506 r/w section 34 of the Indian Penal Code. The learned Magistrate on 21.02.2007 ordered issuance of process under Section 323, 506, 294 of the Indian Penal Code. Against that, Criminal Revision No. 90/2008 came to be filed against all the three accused that is applicant and two others. That revision came to be dismissed by judgment and order dated 16.09.2008 against which this application is filed. 3. I have heard learned Advocates for both the sides. According to learned Advocate for the applicants, in the absence of sanction under Section 197 of the Code of Criminal Procedure, filing of complaint/entertaining the complaint was not proper. 4. It is to be noted that the allegations in the complaint clearly indicate that certain overt acts are committed and it would be difficult to accept, of course prima facie, that over acts alleged against the applicants could be performed by him in his capacity as Secretary of the Gram Panchayat that is in his capacity and whie 3 discharging Government functions. It is apparent, on this count that the learned Judicial Magistrate First Class passed an order on 05.06.2008 below application at Exh.-35 and he has kept the point open while issuing process. The question whether the sanction is necessary can be raised by the applicant at the time of trial. 5. It was also argued that a civil suit is filed by non applicant no. 2 against the Gram Panchayat and, therefore, this complaint was filed only to harass the applicants. In my view, if any overt act is committed by the applicant, it provides a cause of action for filing the complaint certainly to that person who is victim of an offence. 6. In view of the aforesaid observations, stand of the applicants that the complaint is bad for want of sanction cannot be accepted. The question whether sanction was required or not can be raised by the applicant at the time of trial. Hence, the following order is passed. 4 (a) The application is dismissed. Rule discharged. (b) The question whether sanction under Section 197 of the Code of Criminal Procedure is required can be agitated at the time of trial. (c) It is made clear that the observations made in this order cannot be used by non applicant no.1 at the stage of trial. JUDGE kahale