BAL GOVIND SONKAR Vs. STATE OF U P

JUDGEMENT

(1.) S. S. Kulshrestha, J. This application under Section 482 of the Code of Criminal Procedure (hereinafter called to be Code) has been brought for quashing the proceedings of complaint Case No. 5969 of 1981 (new number 6039 of 1983/93), Ram Narayan Dixitv. D. P. Singh and six others, under Sections 147, 342, 365, 367, IPC pending in the Court of A. C. J. M.-I, Agra and also for quashing the order dated 10. 10. 2007 whereby non-bailable warrants were issued against the applicants.

(2.) IT is said that the applicant No. 1 Sri Bal Govind Sonkar was posted in the year 1981 as Sub-Inspector, Firozabad (Dakshin), Agra and applicant No. 2 Sri Vikram Singh was in those days posted as Superintendent of Police (Rural Area) Agra. Sri Ashok Dixit, s/o Sri Ram Narayan Dixit (complainant) is having criminal history of about 60 cases and is the gang rfiember. He was arrested by Police Hariparvat, Agra in a case under the U. P. Anti Social Activities (Prevention) Act (hereinafter called to be the Act) and the applicants had nothing to do with the said arrest. However, in the complaint brought by Sri Ram Narayan Dixit seven police personnels including the applicants had been arraigned as the accused for the offences under Sections 147, 342, 365, 367, IPC with the allegations that on 24. 8. 1980 they lifted Sri Ashok Dixit for the purpose of killing him in a fake en counter. The complainant at the stage under Section 202 of the Code had exam ined the witnesses namely S/sri Darshan Singh Sikarwar, Shiv Shankar @ Bhola, Sewa Ram Sharma, Om Prakash Dubey, Chhavi Ram Sharma, Sevati Lal Sharma, Chhote Lal Tyagi, Ashok Dixit and Chhotey Lal. On the basis of their statements and other materials cognizance of the offences appears to have been taken by the learned Magistrate and the applicants and other persons named in the com plaint were summoned. Applicants had put in their appearance and an application was moved on behalf of the applicant No. 2 for exempting his presence from the proceedings. Objections were filed on behalf of the complainant but that applica tion is still lying undisposed of. Apart from other pleas it was contended that though Sri Ashok Dixitwas detained by Police Hariparvat and the applicants had nothing to do with it. Alternatively this act was done by the police personnels in the discharge of their official duties and they are'squarely protected under Sec tion 197 of the Code. Agreeing with this proposition the learned Magistrate. dis-missed the complaint for the want of sanction under Section 197 of the Code but the learned Addl. Sessions Judge in criminal revision No. 529 of 1982 vide the order dated 5. 8. 1983 set aside the order passed by the learned A. C. J. M.-I, Agra holding it to be premature and directed the learned Magistrate to summon the General Diary from the concerned police station so as to make the ascertain ment whether such an act of the police personnels was in the discharge of their official duties. Since then the matter is pending for decision including that of the application for exemption moved on behalf of the applicant No. 2. The learned Magistrate though several times issued reminders to Police Firozabad (North) and Police Jaitpur, Agra for furnishing the General Diary of the relevant dates but the same could not be furnished as having been weeded out and the issue of protection under Section 197 of the Code remained undecided. The General Diary of Police Station Hariparvat, Agra was not summoned though the detention under the Act pertained to that police station. Not only this the learned Magistrate rushed up to issue non-bailable warrants against the applicants. IT is also said that Sri Ram Narayan Dixit expired in the year 2003 and so the proceedings ought to have been dismissed as abated.

(3.) IN the case of Rashida Kamaluddin Syed v. Shaikh Saheblal Mardan, (2007) 3 SCC 548 the Apex Court also observed : "from the above case law, in our opinion, it is clear that on the death of Shaikh Saheblal, the case did not abate. It was, therefore, open to the sons of the complainant to apply for continuation of proceedings against the ac cused persons. By granting such prayer, no illegality has been committed by the Courts. There is an additional reason as to why the order should not be interfered with at this stage. As we have already noted, the complainant died in Novem ber 1996, immediately thereafter, the sons applied for impleadment allowing them to continue prosecution against the accused persons by the applica tion dated 17. 1. 1997. The said application was allowed and permission was granted by an order dated 23. 5. 1997. The said order was never challenged by the appellants and it had become final. Name of the first respondent was entered on 14. 5. 2000. Thereafter witnesses were also examined. INsofar as application dated 4. 8. 2004 of the accused is concerned, it was under Sec tion 239 of the Code which provides for discharge of the accused. The only ground put forward by the accused was that no prima facie case had been made out against them. IN the light of above facts also, in our opinion, this is not a fit case to exercise discretionary power under Article 136 of the Consti tution. " Here in this case during the pendency of the proceedings, complainant died, his sons were permitted to continue the prosecution. Magistrate granted permis sion. That order, having not been challenged by the applicant, become final. Even otherwise there appears no illegality in the grant of permission. Proceedings of complaint case therefore, did not abate.