AUDAN SINGH Vs. RAIENDRA SINGH AND OTHERS

JUDGEMENT

(1.) -List has been revised. None appeared for the petitioner. The learned counsel for the respondent is present and has placed on record certified copy of the judgment dated 19.1.89 passed by the Sessions Judge, Basti. A perusal of the file would show that Audan Singh petitioner herein had filed Criminal revision No. 5.8.1989 Audar. Singh Vs. State and others before the learned Session Judge against the summoning order dated 28.1.1987 passed by the Magistrate,. in case No. 55 of 1986 under Sections 500/330/342 IPC. From the perusal of prayer clause or grounds of revision, it is clear that originally this case was filed under Sec. 482 Crimial P.C. but vide order dated 5.4.1989 it Was allowed to be converted into a revision. thereby challenging the order dated 28.11.1989. A perusal of the certified copy now produced in the court and that of photo copy of the same already on record shows that revision No. 513 of 1988 was filed before the Sessions Judge, Basti against the summoning order of the Magistrate dated 28.1.1987. The learned counsel submits that due to oversight instead 28.11.87 in the judgment of the Sessions Judge, Basti 28.1.1987 has been mentioned. Be that as it may, I can not myself record a finding to the effect that as a matter of fact revision No. 513. of 1987 before the Sessions Judge was against the order dated 28.11.87 and not against an.order dated 28.1.1987. Therefore, the argument of the learned counsel for the respondent fails.

(2.) Now on the merits of the case, I have myself examined the material on record as also the ground mentioned in the application now treated as revision. Firstly the case of the petitioner is that the summoning order of the Magistrate is without jurisdiction in as much as the petitioner is protected under Sec. 197 and 22 of the Criminal Procedure Code. I have carefully examined both the provisions. Sec. 22 Crimial P.C. contained the provision which related to local jurisdiction of the executive Magistrate. But the impugned summoning order was not passed by an executive Magistrate.. Para 2 of the affidavit, filed in support of the application makes it clear that Rajendra Singh had filed complaint against 10 persons including the petitioner Audan Singh sub Inspector, in the court of C.J.M. Basti on 17.1.1987 under Sections 147, 148, 149, 500, 504, 506, 420, 323, 3311 and 342 Penal Code in respect of the incident alleged to have taken place at a 6 O'Clock on the night intervening 31.5.1986 and 1.6.1986, para 3 of the said affidavit shows that the said complaint was transferred to lower Criminal Court, III, Basti and was numbered as 55 of 1986 under Sections 500, 330 and 342 IPC. That court was certainly a judicial Magistrate. He recorded the statements of the complainant and Ram Sumer and then passed the impugned summoning order. It is thus apparent on the face of the record that the impugned order was passed by Judicial Magistrate and not by executive Magistrate and, therefore, Sec. 22 Crimial P.C. is not attracted herein. Now on to the question as to whether provision of Sec. 197 Crimial P.C. protected the petitioner.

(3.) Concededly the petitioner is Inspector of police. He is not removable by the Government i.e. Secretary of the police department who is generally Home Secretary. Therefore, the case of the petitioner also does not fall within the mischief of provision of Sec. 197 Cr.P.C. Another ground to the effect that Bhagwan Singh P.W.1 was the father of the complainant whereas Ram Sumer P.W.2 was his wife and therefore, none of them being from an independent source, their testimony could not be believed and summons could not be is,sued on the basis of their testimony. I am afraid that this argument is not tenable at the stage of summoning. It is subjective satisfaction of the Magistrate that prima facie case for summoning is made out or not. This point may be relevant at the trial.