Document Fragment View

Matching Fragments

1. Instant writ petition has been filed for issue of writ, order, rule or direction to quash impugned order and judgement dated 24.4.1999 passed by Chief Judicial Magistrate, Bhadoi at Gyanpur district Sant Ravi Das Nagar and order dated 8.9.1999 whereby learned Sessions Judge, Bhadoi at Gyanpur Sant Ravi Das Nagar has dismissed the revision preferred against order dated 24.4.1999 passed by Chief Judicial Magistrate Bhadoi at Gyanpur. district Sant Ravi Das Nagar. By order dated 24.4.99 at the Chief Judicial Magistrate Bhadoi at Gyanpur district Sant Ravi Das Nagar has rejected final report submitted by CB CID in Crime No. 18 of 1999 under Section 307 IPC and 25 Arms Act, P.S. Bhadoi, district Sant Ravi Das Nagar and directed Director General of Police,Uttar Pradesh to pass order for investigation being made afresh by Anti Corruption Branch.

Heard Sri Surendra Singh learned Addl. Government Advocate for the petitioner, Sri V.P. Srivastava learned senior counsel assisted by Sri Praveen Kumar learned Counsel for the respondents and have gone through the record.

2. Order dated 24.4.99 was passed by the then Chief Judicial Magistrate, Bhadoi at Gyanpur in Crime No. 18/99 Akhila Nand Mishra v. Unknown Accused under Section 307 IPC and Section 25 Arms Act, Police Station Bhadoi, Crime Nos. 626, 627, 628, 629 and 630 of 1998 whereby, the final report submitted by CB CID was rejected and Director General of Police, U.P. was directed to get the investigation done by Special Officer Vigilance Cell. Aggrieved from the order Criminal Revision No. 76 of 1999 was preferred by State of U.P. which was decided by learned Sessions Judge, Bhadoi at Gyanpur on 8.9.99 and the revision was dismissed. Hence this writ petition has been filed.

8. It has been submitted by learned Addl. Government Advocate that both the Orders passed by the learned CJM concerned as well as the order passed by the learned Sessions Judge, concerned in Revision are against the provisions of law as the learned Magistrate is not competent to pass order for fresh investigation or re-investigation, utmost he can pass order for further investigation. It is further submitted that learned Magistrate or the learned Sessions Judge is not competent to change the Investigation Agency and it is the discretion of the State Government as by which Agency investigation is to be done. In this case considering the death of four persons State Government passed order for investigation being made by CB CID and not by Civil Police. After investigation the FIR lodged by Akhilanand Mishra that four persons were killed in police encounter was found false. It was found that it was murder of four persons and therefore the Investigating Officer CB CID lodged FIR under Section 302 IPC and other sections of IPC and after investigation, charge sheet has been submitted against the opposite parties Akhilanand and other police officers and officials under Section 302 IPC and other sections of IPC. It has been further submitted by learned Addl. Government Advocate that when final report was filed the opposite parties who are Circle Officer and Sub-Inspector of Police concerned were not entitled to file protest petition and objection which was to be filed by the CB CID was rejected. CB CID was not heard when order was being passed by the learned Magistrate on final report.

20. In this case the learned Chief Judicial Magistrate concerned whose order has been approved by the learned Sessions Judge, Bhadoi passed order that final report was rejected and Director General of Police was directed to get fresh investigation made by Vigilance Cell. learned Chief Judicial Magistrate concerned did not only passed order for fresh investigation but also changed the Agency of investigation. He was not competent for doing so. If there was any omission, defect, irregularity or shortcoming in the investigation or some more evidence was to be collected the order to be passed was for further investigation by the same Agency. The learned Chief Judicial Magistrate concerned found that Inspector CB CID P.N. Nigam, did not did justice while submitting final report. The allegation of the complainant and other Police Officer. The allegations were that Inspector CB CID P.N. Nigam has got some forged documents prepared which have caused prejudice to opposite parties, the police officials and police officers. In these circumstances opposite parties, the police officials and police officers. In these circumstance the learned Chief Judicial Magistrate concerned utmost could have directed for further investigation by the same prosecution agency by some other Officer so that prejudice may not be caused, but learned Chief Judicial Magistrate concerned was not competent to pass order for fresh investigation or re-investigation by some Agency other than the Agency which had investigated the case. Therefore impugned orders passed by the learned Chief Judicial Magistrate, Bhadoi as well as the order passed by the learned Sessions Judge, Bhadoi suffers from illegality. These orders have been passed in violation of the law of the land and both orders deserve to be set aside.