D N PANDEY Vs. STATE OF U P

JUDGEMENT

(1.) HEARD learned counsel for the applicants and the learned A.G.A.

(2.) THE present two applicants are police personnel. Complainant, Respondent No. 2, namely, Rakesh Chaturvedi, who is practicing advocate, as has been stated at the bar by the learned counsel for the applicants, lodged a complaint against this two erring police personnel in the court of Additional Chief Judicial Magistrate, Sonbhadra. His complaint was registered as complaint case No. 5408 of 2005. The allegation in the complaint, as is perceptible from annexure No. 2 filed along with this application, are that on 10.10.05 at 5.30 P.M. when the informant was going to Robertsganj on his motorcycle from his house and when he reached near the Baini Hospital, the two present applicants D.N. Pandey, Sub Inspector Police and Jai Shanker Singh, Police Constable stopped him and forced him to come to the police station. On being registered (resisted ?) on the premise that all the papers of the motorcycle are with the complainant, the two police accused abused the complainant filthily and started beating him with kicks and fists. The complainant took to his heels and entered into the house of Baju Tiwari. Later on he was dragged from his house and as a result of this scuffle in dragging his clothes were turn off and he had received injuries. This incident was witnessed by the Nityanand, Virandra Kumar, Raj Kumar, Arvind and Ramesh who intervened into the scuffle and saved the life of the complainant. Subsequently the police personnel challaned the motorcycle of the complainant mala fidely. The complainant got himself medically examined at P.H.C. Baini (Nagwa) and gave an intimation to the said incident to S.H.O. concerned but no action was taken against the erring police personnel. Hence, aggrieved by the incident the complainant came before the Magistrate on 21.10.05 and filed the complaint. The Magistrate examined the complainant under Section 200 Cr.P.C. and also recorded the statement of his witness C.W.1 Virendra and C.W.2 Nityanand, the two persons named in the complaint under Section 202 Cr.P.C. After the aforesaid statements, finding the prima facie case to be made out against the present applicants, he summoned the applicants vide his summoning order dated 2.2.06. On the said premise, the present application under Section 482 Cr.P.C. has been filed for quashing of the complaint.

(3.) COGITATING over the matter a perusal of the complaint as well as the summoning order, it cannot be said that no offence is made out against the applicants. Learned counsel for the applicants contended that the applicant are the police personnel and, therefore, as provided under Section 197 Cr.P.C. whatever the applicants did was in discharge of his official duty. He invited the attention of the Court annexure Nos. 1 and 2 and the alleged challan of the motorcycle by the police. Needless to say that at this stage, this Court is not empowered to consider such type of prayer as has been made in the application under Section 482 Cr.P.C. The prosecution cannot be quashed at the very inception and cannot be nipped into bud except where no prima facie case is disclosed on the face of the record by the complainant. The defence of the accused cannot be considered at this stage. The contention of the learned counsel for the applicants that applicants are protected under Section 197 Cr.P.C., is wholly unacceptable and is, therefore, rejected. It is not the duty of the police officers to stop somebody going on motorcycle and beat him, filthily abuse him, chase him and torn off his clothes. This act by no stretch of imagination is covered in the official duty of the police officers.