( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 820 OF 2010 Sachin Rohidas Mirpagar PETITIONER VERSUS The State of Maharashtra & others RESPONDENTS .... Mr. Swapnil S. Patil, advocate for the petitioner. Mr. B.J. Sonawane, APP for the respondent Nos. 1 & 2. .... [CORAM : V.R. KINGAONKAR, J.] [DATE : 21st October, 2010] PER COURT : 1. By this petition, the petitioner challenges order rendered by learned Magistrate, in S.C.C. No. 129/2010 on 17-07-2010. By that order, process has been issued against the petitioner, for offences punishable under section 323 and 506 read with section 34 of the I.P. Code alongwith the other two (2) accusedpersons. 2. The petitioner is shown as accused No. 2 in the private complaint case bearing S.C.C. No. 129/2010 filed by the respondent No. 3 - Namdeo. ( 2 ) 3. The learned advocate for the petitioner would submit that the petitioner is falsely implicated in the private complaint case though he was not present at the place of incident, nor could be attributed any role in the commission of alleged offence. Learned advocate would further submit that the petitioner was employed only as a driver of the police jeep vehicle in which the respondent No. 3 - complainant was transported to the Police Station. The petition is based upon probable defence which the petitioner seeks to adopt during course of the trial. The averments in the private complaint and also the observations in the enquiry report prima facie indicate that the petitioner participated in the alleged assault mounted on the complainant - respondent No. 3. 4. Faced with such difficulty, the learned advocate submits that there is absence of sanction under section 197 of the Criminal Procedure Code. Whether the sanction is required or the act of the petitioner does not fall within ambit of the action taken in the course of discharge of his duty, which requires sanction, is the question of fact. It has to be decided by the learned Magistrate on basis of the nature of averments. In the exercise of writ jurisdiction, on basis of ( 3 ) mere pleadings of the petitioner, it cannot be said that the sanction is must for his prosecution. The question involved is whether the petitioner acted in the discharge of his duty at the relevant time and could be protected under colour of his office being a police staff member. At this juncture, it would be premature to make any observation regarding the necessity of sanction. The petition is, therefore, dismissed as the same is not within purview of Article 227 of the Constitution of India. [V.R. KINGAONKAR] JUDGE NPJ/criwp820-10