DEEPAK KUMAR Vs. RATTAN LAL KOUL

JUDGEMENT

(1.) RESPONDENT despite efforts to serve him at his official/residential address is not traceable and has not appeared. Having regard to the totality of facts and circumstances of the case, appearance of respondent is dispensed with under enabling provisions of law.

(2.) HEARD . The two petitioners, the then Superintendent of Police Kargil and S.H.O. Police Station Kargil are challenging the order dated 26.7.1999, where -under the Chief Judicial Magistrate Kargil has dismissed the complaint filed against respondent/accused and also issued notice to petitioners to show cause why they may not be punished to pay compensation in terms of Section 250 CR.P.C.

(3.) PETITIONER -s while supervising and ensuring that no copying takes place in the examination centers in Govt. Girls Higher Secondary School Kargil, as per orders and directions of the higher ups in the Govt. deputed one Abdul Rehman ASI along with other Police personnel for duty on 30.4.1999 at the examination centre when the examination of Class 12th students was being held. The Police personnel were on duty around the examination Centre and on the main gate the Principal, accussed Rattan Lal Koul, took objection and asked them to withdraw. The Principal was asked to give in writing all this to the ASI so that Police could be withdrawn. Principal threatened the police party and incited people against the police personnel on spot. On this complaint, the Principal was summoned and taken to Police station, under section 54 of Cr.P.C. where he was let off. However, a complaint was filed against the accused under section 190 RPC for having committed offence under section 186 RPC. (Annexure -B) Once the complaint was filed, the Magistrate was to take congnizance and proceeded in the matter in the manner provided for a summons case under Chapter XVI of Cr.P.C. The Magistrate instead of following this statutorily laid procedure, has gone on a wrong track and treated the matter as a case instituted on police report under Section 173 Cr. P.C. and thereby followed the procedure prescribed for such case under Section 251 -A C.P.C. By the impugned judgement and order, the Magistrate dismissed the case and instead recorded an order of discharge on the ground that the case has been investigated by the Police in breach of provisions of Section 155 Cr.P.C. In fact the CJM Kargil has dismissed the case "for defective and illegal investigation", least realizing the case before him is not one on police report under section 173 Cr.P.C. Instead of taking cognizance of the case under Section 191 -A Cr.P.C., and proceeding in the matter under Chapter XIV of Cr.P.C., the Magistrate has confused the whole issue and erroneously recorded that the investigation of case by the Police is in breach of provision of Section 155(2) of Cr.P.C.