UMA SHANKER MISRA Vs. STATE OF U P

JUDGEMENT

(1.) THE applicant was a Sub-Inspector of Police and was posted as Second Officer at Pdlice Station Jagdishpur in the district of Sultanpur. A complaint was lodged against him and two others by opposite party No. 2 Salig Ram for offences under Sections 302, 201, 120-B and 109 IPC. It was alleged by the complainant in that case that the present applicant and the local police were inimical towards the complainant's son Shitla Prasad who was falsely roped in by the police in various cases but had been acquitted. THE local police had therefore, decided and entered into a conspiracy with Raj Karan and Harakh Bahadur Singh who were also implicated as accused in the said complaint to cause the murder of Shitla Prasad. Accordingly Shitla Prasad was murdered on 27-9-1977 and a false encounter was shown by the police. THE complainant tried to lodge a report and initiate action but the local police would not do so and consequently he approached the higher authorities for an enquiry into the matter. A magisterial enquiry was accordingly held in the alleged occurrence of encounter. THE complainant was not satisfied with the progress of the enquiry and did not have faith in the proceedings and consequently he lodged the complaint in question before the Judicial Magistrate Su.tanpur. THE complaint is Annexure 1 to this petition and a list of twelve witnesses including the complainant was appended to that complaint.

(2.) THE learned Magistrate examined the complainant under section 200 of the CrPC and also examined six other witnesses under section 202 thereof and passed an order summoning the three accused persons including the present applicant for offences under the aforesaid sections. THE applicant felt aggrieved by the order and preferred a revision before the learned Sessions Judge. THE same was, however, dismissed. THE order of the learned Magistrate summoning the accused persons is Annexure 9 and that of the learned Additional Sessions Judge is Annexure 11. Feeling aggrieved by that order the applicant has filed this application under Section 482 CrPC praying that the criminal complaint and the proceedings started thereon and pending in the court of the Chief Judicial Magistrate Sultanpur be quashed. THE main grounds of contention raised on behalf of the applicant are that, in the first instance, the learned Magistrate was not competent to summon the accused persons merely after exam icing the complainant and six other witnesses when a list of twelve witnesses had been appended to the complaint and for this he has placed reliance on the proviso to sub section (2) of Section 202 CrPC. Another contention of the applicant was that he was a public servant and consequently without the sanction of the State Government under Section 197 of the Code of Criminal Procedure the learned Magistrate could not have taken cognizance of the matter. Finally, it was contended that on the basis of the entire evidence brought on record no case whatsoever had been made out against the applicant and that the magisterial enquiry report Annexure 10 in which the encounter was found to be genuine and the police action had been justified, had not been taken into consideration.

(3.) AS regards the applicability of the proviso to sub-section (2) of Section 202 CrPC reliance has been placed on Division Bench decision of this Court in Dinesh Chand v. Rahmatullah, 1981 AWC 210. It was held that although it may not be necessary to examine all the witnesses mentioned in the complaint if the case was triable exclusively by a Sessions Cou'rt yet all the witnesses who were sought to be produced on behalf of the prosecution and were not specifically given up should be examined before an accused could be summoned. In the present case, besides the complainant six other witnesses had been examined out of the list of twelve witnesses appended to the com- i plaint. There is nothing to indicate that the complainant had given up the remaining five witnesses either orally or by making an application to the effect that he was relying only on the evidence of six witnesses besides himself. That being so, the said proviso had not been complied with. The order summoning the applicant therefore was clearly in violation of Section 197 and the proviso to sub-section (2) of Section 202 CrPC and it has therefore, to be quashed.