ANEETA BHATNAGAR JAIN Vs. STATE OF U P

JUDGEMENT

(1.) K. N. Sinha, J. By means of present application under Section 482, Cr. P. C. , the petitioner has sought the quashing of the remarks made against her by opposite party No. 2 in the judgment and order dated 7-5-2003 passed in Sessions Trial No. 152 of 2000, connected with Sessions Trial No. 50 of 2001 State v. Lallu (Annexure 1 to the affidavit ).

(2.) THE relevant facts, relating to the present application are incorporated in the affidavit annexed with the application. One Lalloo son of Mahendi Musalman was arrested in Case Crime No. 496 of 2000 under Section 25 Arms Act and also in Case Crime No. 495 of 2000 under Section 18/20 NDPS Act of police station Naubasta, Kanpur Nagar. After investigation charge-sheet was filed against the accused under the aforesaid sections and accused was put to trial in the Court of respondent No. 2, Sri Subhash Chandra Mangala, Special Judge (NDPS Act), Kanpur Nagar in Sessions Trial Nos. 152 of 2000 and 50 of 2001. Both the trials were decided together and a common judgment was passed. THE judgment was delivered on 7-5-2003 and accused Lallu was acquitted as per Annexure 1 to the Affidavit. Applicant Smt. Aneeta Bhatnagar Jain was District Magistrate, Kanpur Nagar at the relevant time and she had accorded sanction for prosecution for the offence under Section 25 Arms Act. THE respondent No. 2, while delivering the judgment and acquitting the accused, made certain warranted and uncalled for remarks against the petitioner and directed that copy of the judgment be sent to the Chief Secretary, State of U. P. for taking action against the petitioner and apprise the Court with the action taken.

(3.) IN the finding recorded in the judgment, the trial Court has made certain observations at page Nos. 1, 3, 14 and 15 of the judgment. It has been observed by the respondent No. 2 that the statement regarding presence of investigating officer si contradictory and not reliable. No reason has been given as to why statement of the petitioner is unreliable and that of the investigating officer is reliable. If the Court was so much conscious about the fact, he should have called for the General Diary of the police station of the relevant dates, which could have shown whether the investigating officer left the police station to visit District Magistrate or not, but no such effort has been made. The respondent No. 2 again referred to the statement of the petitioner at page 3 and observed that statement of investigating officer and the petitioner is contradictory and again recorded the same finding that statement of the petitioner cannot be believed. The respondent No. 2 has also referred to various pages of the case dairy. The case diary prepared by the investigating officer cannot be the evidence to impeach the credibility of any witness unless it was proved by the investigating officer as against the petitioner. The fact recorded in the case diary cannot be used as evidence. The District Magistrate cannot be said to be liable for what has been recorded by the investigating officer in the case diary. The case diary is in the custody of investigating officer and it was never seen by the District Magistrate. The Court has further disbelieved the statement of the petitioner on the ground that her statement in regard to the cartridge and pistol for deciding the bore for pistol is not trustworthy, as the cartridge and the pistol was not produced before her. There is no basis for the Court to form such opinion.