vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4301 OF 2004 CRIMINAL APPLICATION NO.4301 OF 2004 CRIMINAL APPLICATION NO.4301 OF 2004 Suresh D. Mishra & Anr. ... Applicants V/s. Vishwambarshing M. Kuswah & Anr. ... Respondents Mr.Balkrishna Joshi for Applicants Mr.Sagar Kasar for Respondent No.1 Mr.H.J. Dedhia, APP, for Respondent State CORAM: SMT.NISHITA SMT.NISHITA SMT.NISHITA MHATRE, J. MHATRE, J. MHATRE, J. DATED: JUNE 19, 2008 JUNE 19, 2008 JUNE 19, 2008 P.C.: P.C.: P.C.: . The application has been filed for quashing Criminal Case No.23 of 2001 and to set aside the order of 5.7.2004 passed by the JMFC, Manmad for framing of the charge under sections 325, 324, 506A r/w 34 of the Indian Penal Code. The learned counsel for the petitioner submits that the Court while considering the discharge application has not taken note of the fact that the petitioners were public servants and, therefore, a sanction u/s 197 would have to be obtained. He points out that without a sanction, no prosecution could lie against the public servant. He buttresses his arguments with the judgment of the Supreme Court in the case of Sankaran Moitra v/s. Sadhna Das & Anr., (2006) (2006) (2006) 4 SCC 584. 4 SCC 584. 4 SCC 584. He then submits that the enquiry conducted in this case has revealed that there were notings in the : 2 : register showing that the petitioners were on duty. 2. On the other hand, the learned advocate for the respondents submits that the complaint shows that the petitioners were in civil clothes when the incident occurred. They were carrying liquor bottles with them and have directed the respondents who were vendors in the pantry car to serve them food. He submits that in such a situation no sanction is required as held by the Supreme Court in the case of Bakshish Singh Brar v/s. Smt.Gurmej Kaur, AIR 1988 SC 257 AIR 1988 SC 257 AIR 1988 SC 257 and Trilochan Barik v/s. Raghunath Bal, 1991 CRI.L.J. 2259. 1991 CRI.L.J. 2259. 1991 CRI.L.J. 2259. 3. A perusal of the documents on record and on consideration of the submissions made by the learned counsel, in my opinion, it would be necessary for the trial Court to consider whether the petitioners were in fact on duty or not at the relevant time, especially since they were found to be in plain clothes. If they were on duty, obviously, sanction would be required. If they were not on duty, then the learned Magistrate would pass appropriate orders. 4. In this situation, I do not see any reason to interfere with the learned Magistrate directing framing of charge against the petitioners and rejecting the discharge application. Application dismissed.