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5. The basic thrust of the arguments of learned counsel for the petitioner is that the learned Magistrate while rendering his findings could not have made any adverse comment against the petitioners without hearing them. It is submitted that no opportunity of any kind was afforded to the petitioners to be heard or to cross-examined any of the 55 witnesses whose statements were taken into account while preparing the judicial inquiry report.

6. The State has filed return inter-alia submitting that the FIR was registered solely based on the report of magisterial inquiry against the petitioners who have been found guilty in the said inquiry and investigation for the same was handed over to the CID where it is pending and cannot proceed owing to interim order passed by this Court restraining the functionaries of the State from taking any coercive steps against the petitioners. The State further reveals in the reply that once the Magisterial inquiry finds the petitioners to be prima-facie guilty of the offence of custodial death, registration of offence against petitioners vide impugned FIR is a necessary consequence.

7.5 In view of the aforesaid marked difference, the Judicial Magistrate while conducting an inquiry u/S 176(1-A) can submit a report not only disclosing the cause of death, but also naming the persons who according to the Judicial Magistrate may be responsible for custodial death.

8. In the instant case, while conducting judicial inquiry CJM, Distt Datia recorded statements of 55 witnesses including the parents and two brothers of the deceased and applied his judicial mind, not only into the cause of death of deceased in police custody, but also upon the aspect of ascertaining the identity of persons responsible for the custodial death. While doing so, the findings rendered in the final paragraph of report have named two separate sets of persons. The first set of such accused persons are those against whom the CJM has found prima-facie evidence of involvement in the custodial death and therefore it can safely be concluded that the said five individuals which includes two police personnel can be subjected to registration of an offence u/S 154 Cr.P.C., followed by an investigation and thereafter trial, if necessary. 8.1 The other set of individuals are the petitioners against whom the extent of involvement alleged in the report is by expressing suspicion on account of petitioners being members of a special police team constituted for searching whereabouts of the missing deceased and also at the relevant point of time some of the petitioners were posted at the police station within whose territorial jurisdiction, the custodial death took place.

11. The impugned judicial report does not allege commission of cognizable offence as alleged in the impugned FIR against the petitioners. The report merely castes suspicion upon the petitioners of their involvement in the alleged crime on the strength of the petitioners being members of special police force or being posted at the concerned police station at the relevant point of time

12. The course that ought to have been adopted by the State and its functionaries in the case of petitioners against whom mere suspicion was expressed by the CJM, Datia in its report, was to contemplate on the question as to whether their involvement in the incident of custodial death of deceased Netram would attract criminal law or disciplinary proceedings. This exercise does not seem to have been undertaken by the competent authority. The Judicial Magistrate's report has been taken as gospel truth qua the petitioners for lodging the impugned FIR. There is no doubt that the respondents were duty bound to register the FIR against the first set of individuals i.e. Manoj Saream and Harishankar Rathore alongwith the said three doctors namely Dr. K.C. Rathore, Dr. A.K. Jain and Dr. R.B. Kurele against whom the CJM, Datia clearly found prima- facie evidence of commission of cognizable offences. However, since no such finding was recorded against the petitioners and mere suspicion was expressed, the said judicial inquiry report ought not to have been accepted by the respondents as a dictate to lodge the impugned FIR against the petitioners.