SHYAM BABU Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Sri I.K. Chaturvedi, learned counsel for the applicant, Sri Marut Kumar Tripathi, learned counsel for the opposite party no. 2 and Sri G.P. Singh, learned A.G.A. for the State.

(2.) This application has been moved seeking quashing of the order dated 28/07/2012 passed by the Civil Judge Junior Division/Judicial Magistrate, Ghazipur whereby he has dismissed application 21 B of the applicant which was moved for discharge under sections 245 (2) of the Criminal Procedure Code.

(3.) The submission is that the applicant has been summoned under sections 218, 323, 342, 392, 504 and 506 IPC in criminal case no. 304 of 2011 Abhishek v. Shyam Babu, police station Bhurkura, District Ghazipur despite the fact that no offence is made out against the applicant and the same is nothing but an abuse of process of court. The applicant was posted at police station, Dullapur, District Ghazipur as station officer on the date of occurrence i.e. on 19/04/2011 and it is alleged that at 12:00 PM (noon) the applicant lodged an F.I.R. against the opposite party no. 2 and his father on 19/04/2011 at 12.50 p.m. registered as crime no. 326 of 2011 under sections 332, 353 323, 307, 504 and 506 IPC, sec. 7 Criminal Law Amendment Act and sec. 3 (II) (V) SC /ST Act at PS Bhurkura. At that time the applicant was discharging his official duty and even then he was subjected to Marpit by the opposite party no. 2 and his father and was examined by Doctor on 19/04/2011 at 3 PM, medical examination report is annexed as annexure 2. During investigation the statement of applicant was recorded by the investigating officer, who corroborated the F.I.R. version. The opposite party no. 2 and his father were taken into custody by the applicant and other police personnel along with licensed SBBL gun bearing no. 24630 of 2001 with 16 live cartridges of 12 bore and both the accused were sent to jail. During investigation, the investigating officer recorded the statements of formal witnesses, Virendra Dev, Shri Jitendra Singh Lekhpal and Satendra Kumar, station officer police station Bhurkura, who all corroborated the version of the first informant. The investigating officer further recorded the statement of Rajesh Pandey, SHO, PS Sadiyabad, District Ghazipur, Jagdamba Singh, Tehsildar Jakhania, Jitendra Singh, Sub Divisional Magistrate Jakhania, Shiv Murti, Block Development Officer Jakhania, Avdhesh, Assistant Basic Education Officer, Jakhania, Paltoo Ram, Station Officer PS, Sadat and Rahul Mishra, CO Jakhania, who all supported the prosecution story. Station officer Satendra Kumar also prepared a recovery memo of the SBBL gun of opposite party no. 2. The said licensed gun was recovered from the possession of opposite party no. 2 from the spot itself and after recording the statement of independent witnesses, who were responsible officers, investigating officer submitted charge- sheet against the opposite party no. 2 and Bhoopendra Pratap Singh under the above-mentioned sections i.e. 332, 353, 504, 506, 307 IPC and sec. 7 Criminal Law Amendment Act and sec. 3 (II) (V) SC/ST Act. After the accused i.e. O.P. No. 2 and his father Bhupendra Singh were taken into custody, both were sent for medical examination and were medically examined by Doctor on 19/04/2011 itself, but no injury was found. O P no. 2 Abhishek Tomar is a practicing advocate at Tehsil Saidpur and after being released on bail on 25/04/2011, under the undue pressure of the advocates, he succeeded in obtaining false medical report from District Hospital Ghazipur due to ulterior motive and malafide intention and thereafter he filed a complaint before the Chief Judicial Magistrate, Ghazipur on 11/05/2011 as a counterblast with false allegations. The medical examination report of opposite party no. 2 is said to have been prepared on 27/04/2011 at 2:30 PM by the Medical Officer, District hospital, Ghazipur, in which Doctor has noted scabbed abrasion on his person whereas in his initial medical examination report no injury was found. No medical examination report of Bhoopendra Pratap Singh, father of O.P. No. 2 has been filed. The statement of the opposite party no. 2 is said to have been recorded under sections 200 Cr. P.C. whereas the statements of Nirbhay Kumar Singh and Bhoopendra Pratap Singh are said to have been recorded under sections 202 Cr. P.C. and on the basis of their statements the applicant has been wrongly summoned. Against the order dated 12/10/2011 passed by the Judicial Magistrate - I, Ghazipur Criminal Miscellaneous Application under sections 482 Cr.P.C. No. being 13736 of 2012 was filed before this court which was disposed of vide judgment dated 24/07/2012 directing to move an application under sections 245 (2) Cr. P.C. for discharge. Thereafter the said application was moved and vide impugned order the same has been dismissed, which has been challenged in the present proceedings. Further it is submitted that no prior sanction under sections 197 Cr. P.C. has been obtained against the applicant which is a mandatory provision and yet summoning order has been passed. The applicant has been arbitrarily summoned because on Tahsil Diwas he was performing official duty, therefore he was protected under the provisions of section 197 Cr. P.C. The present proceedings are nothing but malicious prosecution of the applicant which needs to be quashed.