OMKAR YADAV Vs. STATE OF U P

JUDGEMENT

(1.) WE have heard Sri P. C. Srivastava, learned Counsel for the petitioner, Sri Adish C. Agarwal, learned Addl. Advocate General, and Sri S. N. Singh, learned Counsel for respondent No. 4.

(2.) THIS writ petition has been filed by Omkar Yadav for the relief that the respondents-S. P. , Sant Kabir Nagar, SHO of PS Ghanghata, District Sant Kabir Nagar-be directed to arrest and produce respondent No. 4, Rambriksh Yadav, before the CJM, Sant Kabir Nagar, in case No. 241 of 2006, under Sections 147, 148, 149, 308, 302, 323, 504, 506 IPC and 7 Criminal Law Amendment Act and Sections 134-B, 135 of the Peoples' Representation Act and/or to issue a writ order or direction which this Court may deem fit and proper.

(3.) A writ petition (Crl. Misc. Writ Petition No. 60 of 2006, Omkar Yadav v. State of U. P. & Ors. [since reported in 2006 (2) JIC 268 (All)]) was filed by the petitioner in which an order was passed by Hon. R. C. Deepak and Hon. G. P. Srivastava, JJ. on 24-3-2006 observing that as the report was lodged with great promptitude at 4. 20 p. m. on the date of the incident and even the official gunner of Rambriksh Yadav, namely, Prem Singh, had lodged a report alleging that the Respondent had seized his carbine gun and fired at the deceased and as the main role of killing the deceased, Mahatan Yadav, was attributed to Rambriksh Yadav alone, hence the exoneration of Rambriksh Yadav on the basis of some affidavits etc. was patently illegal and it appeared to be the result of the political manipulation of Rambriksh Yadav who belonged to the ruling Samajwadi Party. The bench further observed that the investigating officer was not justified in relying on certain affidavits in preference to the statements recorded under Section 161 Cr. P. C. which had named Rambriksh as the assailant of the deceased. The cross-report of the incident, which was lodged after 16 days of the alleged occurrence by Rambriksh, appeared to be a manipulated cross version. Hence, in such circumstances, the Court observed that the "only venue where it could have settled after recording the evidence of both the parties is only the Court of Law. The police has no right to usurp its jurisdiction to itself and to exonerate anyone without even facing any semblance of any trial, a farce it is which cannot be digested by the Court. " The Division bench further held that "the learned Magistrate is directed to take cognizance against him (Ramvriksh Yadav) and commit the case to the Court of Session alongwith other co-accused, who have already been charge- sheeted to face the trial in accordance with law. " We think that the Division Bench of Hon'ble R. C. Deepak and Hon'ble G. P. Srivastava JJ needed to pass this strong and unusual order only because the concerned Magistrate appeared to have blithely and mechanically accepted the report exonerating the Respondent submitted by the police and to have failed to consider whether on the material on the record there was sufficient material to take cognizance against the respondent.