KARAMAT Vs. STATE AND GOVIND DETHA

JUDGEMENT

(1.) Instant petition under Sec. 482 Crimial P.C. has been filed assailing order dated 24.2.1999 whereby Sessions Judge, Ajmer, accepted application filed by respondent No.2 (accused) under Sec. 197(2) Crimial P.C. in Sessions Case No. 26/1997, holding that no cognizance can be taken against him without taking prior consent from competent authority and in absence whereof, the order taking cognizance by learned Magistrate for offence under Sec. 302, I.P.C., against him is not legally sustainable.

(2.) Facts, in brief, giving rise to instant petition are that respondent No.2 (accused) while holding post of Sub Inspector of Police, and posted as S.H.O. P.S. Christian-Ganj (Ajmer), received a letter of Urban Improvement Trust ("UIT") making request through Superintendent of Police to provide protection since the UIT had to take possession of public land from encroacher and on which Superintendent of Police directed him to join the enforcement team of UIT; along with whom, the police force tinder his supervision reached the spot of public land encroached on 16.2.1990 and at that time, the mob including family members of Hubbal (deceased) started pelting stones upon members of police force and U1T personnel - in course whereof, in order to maintain peace, initially there was a lathi-charge but when the mob could not be controlled, respondent No.2 had to first fire in air but all in vain, therefore, he had no option except to fire which caused injury to Hubbal who was taken to hospital and succumbed to his injuries.

(3.) First Information Report 26/1990 registered by police initially for offence under Sec. 307, I.P.C. but since Hubbal died, it was converted into Sec. 302 I.P.C. After investigation, police submitted negative report but after taking note of material and statements recorded under Sec. 161, Crimial P.C., learned trial Magistrate took cognizance of offence tinder Sec. 302, I.P.C. vide order dated 3.8.1995 on the premise that Hubbal was not holding arms in his hand at the time of incident and on the facts came on record, there was no occasion for respondent No.2 (accused) to have used fire-arms and looking to over-all strength of police force present at the scene of occurrence, action of respondent No.2 (accused) in using fire-arm causing death of Hubbal was his culpable act of commission of offence, as is being evident from contents of written report and statements recorded under Sec. 161, I.P.C.