2026:BHC-NAG:1353 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION APL NO.653 of 2025

1. Shri Mahesh s/o Dattatraya Chate, aged about 60 years, occupation:

retired, r/o house No.95/D, Anant Nagar, Behind SBI Colony, Nagpur.

2. Shri Vikram s/o Mahadeo Sali, aged about 45 years, occupation:

Government Service, r/o Karad, Satara. ….. Applicants.

:: V E R S U S ::

Anup s/o Subhashchandra Jaiswal, aged about 45 years, occupation: business, r/o Krushna Nagar, Wardha.

(Complainant). ….. Non-applicant.

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Shri Kartik Shukul, Counsel for the Applicants Shri J.B.Kasat, Counsel for the Non-applicant.

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CORAM : URMILA JOSHI-PHALKE, J.

CLOSED ON : 12/01/2026 PRONOUNCED ON : 28/01/2026 JUDGMENT

1. Heard learned counsel Shri Kartik Shukul for the applicants and learned counsel Shri J.B.Kasat for the non-

applicant. Admit. Heard finally by consent of learned counsel for the parties.

2. By the present application, the applicants are seeking quashing and setting aside Regular Criminal Case No.338/2013 pending before learned Joint Civil Judge Junior Division and Judicial Magistrate First Class, Court No.2, Wardha and quashing and setting aside order of issuance of process against the applicants.

3. The applicant No.1 is retired police officer and applicant No.2 is working in the police department and at the relevant time was posted as Sub Divisional Police Officer at Wardha. As per the contention of the non-applicant (the complainant), he was arrayed as accused in connection with Crime No.139/2013 registered with the Wardha City Police Station for offences under Sections 180 and 353 of the IPC and under Sections 33/131, 115, 116, and 117 of the Maharashtra Police Act. In the said crime, he was arrested and produced before learned Magistrate at Wardha on 25.3.2013. During enquiry, at the time of the remand, he was subjected to police atrocities during the police custody, due to which he sustained severe injuries. Therefore, by order of learned Magistrate, he was referred for medical examination and, thereafter, his statement was recorded and report was forwarded to Principle District and Sessions Judge, Wardha to conduct an enquiry into the allegations made by the complainant. Accordingly, one person committee was constituted and the enquiry report was submitted on 18.5.2013. On the basis of the complainant’s statement and the aforesaid medical and enquiry reports, learned Magistrate took cognizance under Section 190 of the Code of Criminal Procedure and directed the complainant to submit his list of witnesses. The complainant filed list of witnesses. After hearing the complainant, learned Magistrate was pleased to issue process by passing order on 31.8.2013 against the applicants under Section 323 read with 34 of the IPC.

Learned Magistrate has also issued the process against the applicants.

4. Being aggrieved and dissatisfied with the order of issuance of process and of taking cognizance, the complainant challenged the said order in revision bearing Criminal Revision No.91/2013 on the ground that the order of issuance of process under Section 323 of the Code is contrary to the medical evidence as he has sustained grievous hurt in the alleged incident. The said revision was allowed and in view of the order passed by learned Additional Sessions Judge, Wardha, process was issued against the applicants under Section 326 read with 34 of the IPC. Being aggrieved and dissatisfied with the same, the present application is filed by the applicants.

5. Learned counsel for the applicants submitted that taking cognizance by learned Magistrate, in absence of sanction required under Section 197 of the Code itself is illegal and erroneous. The alleged incident at all has not taken place. However, even if it is taken into consideration, the act committed by the applicants is while discharging the official duty and, therefore, the sanction is must.

He further invited my attention toward