The Lucknow Bench of the Allahabad High Court while allowing the petition observed that the same Magistrate cannot be the witness and the judge in the case initiated by him against the Station House Officer (SHO) under Section 29 of the UP Police Act.
A Single Bench of Justice Shamim Ahmed passed this order while hearing a petition filed by Raj Kumar Saroj.
The petition under Article 227 of The Constitution of India has been filed with following relief:-
“Wherefore, it is most respectfully prayed that this Hon’ble Court may kindly be pleased to set aside the order dated 19.01.2024 passed in Misc Case (State Vs S.H.O Mankapur, Gonda) by the Court of Additional District and Session Judge, Gonda.”
Counsel for the petitioner submitted that on 23.05.2015, police of Police Station Mankapur, District Gonda recovered a Truck bearing Registration and an F.I.R was lodged as Case under Sections 41, 411, 413, 420, 467, 468, 487 IPC at Police Station Mankapur, District Gonda.
He further submitted that thereafter the matter was investigated by the Investigating Officer and a charge sheet was submitted before the court below.
He also submitted that during trial on 23.08.2023, the court of the Additional District and Sessions Judge, Gonda issued an order in Session Trial directing the S.H.O Kotwali Mankapur, Gonda to get the physical verification report of the case property i.e Truck.
Thereafter, the S.H.O Mankapur, Gonda sent a letter to the Regional Transport Officer, District Gonda for physical verification of the aforesaid truck. On 30.08.2023, the In-charge Inspector (S.H.O), Police Station Mankapur, District Gonda submitted an application for extension of time for physical verification of the aforesaid truck.
He said that on 30.08.2023, the trial court issued a letter to the Superintendent of Police, Gonda directing him to take action against the S.H.O Mankapur, Gonda and also to submit the physical verification report before the trial court. Thereafter, on 01.09.2023, the A.R.T.O, Gonda completed the physical verification of the truck and submitted its report to the S.H.O Mankapur, Gonda, which was submitted by him before the trial court on 12.09.2023.
He further said that on 26.09.2023, the trial court passed an order directing the office to register Misc Case against the In-charge / S.H.O, Police Station Mankapur, District Gonda. Thereafter, on 03.10.2023, the learned trial court issued notice to the S.H.O Mankapur to submit his explanation to the notice issued by opposite party no 2 personally on 10.10.2023. Further, on 10.10.2023, the then In-charge Inspector (S.H.O), Police Station Mankapur, Gonda / petitioner submitted his report before the learned trial court stating therein that on 10.10.2023, he has taken charge of Police Station Mankapur, District Gonda.
He said that on 11.10.2023, the opposite party no 2 issued a notice to the then In-charge Inspector / S.H.O, Police Station Mankapur, Gonda to submit his explanation before the learned trial court personally on 19.10.2023. Thereafter, on 19.10.2023, the trial court issued a notice to the Superintendent of Police, District Baghpat directing him to produce the then S.H.O Mankapur, District Gonda, namely, Sudhir Kumar Singh for evidence on 30.10.2023.
However, the Superintendent of Police, Baghpat vide letter dated 06.11.2023 informed the opposite party no 2 that Inspector Sudhir Kumar Singh has not reported in the District Baghpat till 06.11.2023. Thereafter, on 15.11.2023, the opposite party no 2 issued Non Bailable Warrant against the then S.H.O Mankapur, namely, Sudhir Kumar Singh and directed the Incharge Inspector / S.H.O, Mankapur, Gonda to produce the accused on 30.11.2023. Thereafter, on 30.11.2023, the trial court issued notice to the petitioner for his evidence.
He further submitted that on 11.12.2023, the petitioner was on urgent duty hence he failed to appear on 11.12.2023 for adducing his evidence. On 19.01.2024, the trial court passed the impugned order punishing the petitioner under Section 29 of the U.P Police Act and lodging F.I.R against the petitioner under Section 406 IPC.
He also submitted that the trial court had exceeded its jurisdiction by registering a Misc Case against the then S.H.O Mankapur, Gonda without mentioning that under which Section or Act the Misc Case was being registered.
He further submitted that as per record, the Presiding Officer, the Opposite Party No 2 is complainant in the said Misc. Case and he himself tried the said Misc Case in his own court which is against the law.
He further submitted that the trial court was supposed to send the matter for appropriate action to the competent authority / District Magistrate, Gonda for action under Section 29 of U.P Police Act.
He further submitted that no part of the truck is missing and no one has lodged any complaint about the misappropriation of any valuation security and even no one has claimed the ownership of said truck, hence, the prosecution under Section 406 I.P.C as directed by the learned trial court is also an abuse of process of Court.
He further submitted that no case is made out against the petitioner under Section 406 I.P.C as the petitioner has not committed any willful breach and is also not guilty of any violation of duty or neglect or any lawful order made by competent authority even he was also not a party in the Misc Case, hence, the punishment order against the petitioner is absolutely illegal, arbitrary and malafide.
He further submitted that the impugned order suffers from material illegality and infirmity, which apparently from the face of record appears to be unsustainable in the law and the same is liable to be set aside as the same is passed in gross violation of law.
On the other hand, A.G.A-I for the State submitted that the impugned order has been rightly passed by the trial court after due consideration of material available before it, as such, it does not require any interference by the Court, therefore, the instant petition is liable to be dismissed at this stage only.
The Court observed that,
Having heard counsel for the parties and having perused the records, it is evident that the charge levelled by the Magistrate during the course of a judicial proceeding against the petitioner was of breach of duty by not complying with the directions of the Court. The Magistrate, therefore, proceeded to issue a notice to the petitioner calling for an explanation.
The said provision indicates that a person has to be found guilty of violation of duty or wilful breach or neglect of any rule or regulation or a lawful order made by competent authority, and if the same results in conviction by a Magistrate, then a penalty shall be imposed not exceeding three months pay or imprisonment in the manner prescribed therein.
The charge against the petitioner is of having breached the court’s order which was a lawful order made by a competent Magistrate. The aforesaid willful neglect of duty or breach of duty has been made punishable, and from the U.P Police Regulations, Chapter XXXII, it appears that a procedure has been provided to deal with such situations. The provisions relating to such enquiry if being undertaken under Section 29 of the Police Act 1861 are contained in Regulation 484 and 486 of the Police Regulations.
“The aforesaid provision also indicates that the matter shall be taken up by the Superintendent of Police departmentally or by the District Magistrate in manner indicated above. In the event the Magistrate himself takes notice of it then in view of the provisions of Section 190 Criminal procedure Code as referred to therein, the matter will have to be sent to another Magistrate for conducting the enquiry after putting the Officer to notice.
The procedure therefore makes it amply clear that the same Magistrate cannot be the witness and the judge himself. The procedure adopted by the Magistrate to proceed against the petitioner was therefore not in conformity with the provisions of Section 29 of the Police Act 1861 read with the Regulations referred to hereinabove.
The A.G.A-I has not been able to point out any contrary provision or conferment of power on the Magistrate so as to allow him to proceed to convict the petitioner in the circumstances indicated above”, the Court further observed while allowing the petition.
Accordingly, the Court set aside the order dated 19.01.2024 passed in Misc Case (State Vs. S.H.O Mankapur, Gonda) by the Court of the Additional District and Sessions Judge, Gonda leaving it open to the competent authority to proceed in accordance with the provisions as indicated above in the event such powers can be invoked on the facts of the case