An order for investigation under Section 156(3) of the Cr.P.C. does not require prior sanction under Section 197 for public servants as it does not constitute taking cognizance of an offence.

JUDGEMENT

1. Rule returnable forthwith. Learned APP waives service of Rule for the respondent State and Mr.Gohil, learned counsel waives service of Rule for the respondent No.2.

2. With consent of learned counsel for the respective parties and considering the issue involved in the petition, present petition is taken up for final disposal.

3. By way of this petition under Articles 226 & 227 of the Constitution of India, the petitioners seek to challenge the legality and validity of the impugned order dated 21.08.2021 passed in Criminal Revision Application No.243/2021 by learned 11th Sessions Judge, Surat as well as the impugned order dated 04.08.2021 passed in Criminal Misc. Application No.672/2021 below Exh:1 by learned 10th Additional Chief Judicial Magistrate, Surat, whereby, the private complaint filed by respondent No.2 for the offence punishable under the provisions of Indian Penal Code , referred to Assistant Commissioner of Police, Surat, for investigation under Section 156 (3) of the Code of Criminal Procedure (‘the Code’ for short).

4. Question of law sought to be raised in this petition is as to whether an order directing investigation under Section 156 (3) can be passed in relation to “public servant” in the absence of valid sanction as contemplated under Section 197 of the Cr.P.C. 5. The respondent no. 2 filed a private complaint against petitioners, who are police personnel serving as constables, under Section 200 of the Cr.P.C. alleging commission of offences punishable under Sections 143 , 147, 148, 149, 323, 325, 331, 348, 342, 504, 506(2), 34, & 114 of the Indian Penal Code and under Section 135 of the Gujarat Police Act . Upon receipt of the complaint, the 10th Additional Chief Judicial Magistrate, Surat, directed the police agency to register an FIR and inquire into the matter in exercise of powers conferred under Section 156 (3) of the Cr.P.C.. 6. Brief facts of the complaint is that, on 16.07.2021 at about 7:30 pm, son of the respondent no. 2 - namely Mr. Nardipsinh Shelubhai Gohil was on his way towards his home, riding upon his motorbike. When he reached near Nana Varachha Police Chowki, Surat, he noticed that the petitioners were harassing the street vendors and hawkers nearby the area. The petitioners were in civil dress and the victim injured did not realize that they are police constables. On seeing the harassment, the injured Nardipsinh requested the petitioners not to harass the poor persons. The request made by the injured was turned down by the petitioners and they got angry and abused him in filthy language and was dragged to Nana Varachha Police Chowki, where he was beaten by petitioners.

The petitioners were armed with sticks and caused the grievous injury on his left ankle, at both the foot and over his lower lip.

Thereafter, injured had called his father – respondent No.2 by his mobile. Respondent No.2 reached at the police station. The injured was taken to Sanjeevani Hospital, Surat, where he was admitted and treated for the bodily injuries.

Seven stitches were taken for the lip injury. There was swelling and redness over abdomen and at both the legs.

On the next day i.e. on 17.07.2021, respondent No.2 submitted a written complaint to Kapodara Police Station for the alleged misuse of power, torture and alleged illegal act of the petitioners, however, the complaint was not registered, nor any action was taken by the authority. It is alleged that, the petitioners pressurizing the respondent No.2 for compromise and also given threats that they being police officers, no one can take action against them. The respondent No.2 had also submitted a complaint to Assistant Police Commissioner, Surat for the alleged illegal act committed by the petitioners. Thereafter, on 19.07.2021 and 21.07.2021, he had been called by P.I., Kapodara Police Station, Surat and Police Commissioner