- (1.) K. N. Sinha, J. By means of present application under Section 482, Cr. P. C. , the petitioner has sought the quashing of the remarks made against her by opposite party No. 2 in the judgment and order dated 7-5-2003 passed in Sessions Trial No. 152 of 2000, connected with Sessions Trial No. 50 of 2001 State v. Lallu (Annexure 1 to the affidavit ).
(2.) THE relevant facts, relating to the present application are incorporated in the affidavit annexed with the application. One Lalloo son of Mahendi Musalman was arrested in Case Crime No. 496 of 2000 under Section 25 Arms Act and also in Case Crime No. 495 of 2000 under Section 18/20 NDPS Act of police station Naubasta, Kanpur Nagar. After investigation charge-sheet was filed against the accused under the aforesaid sections and accused was put to trial in the Court of respondent No. 2, Sri Subhash Chandra Mangala, Special Judge (NDPS Act), Kanpur Nagar in Sessions Trial Nos. 152 of 2000 and 50 of 2001. Both the trials were decided together and a common judgment was passed. THE judgment was delivered on 7-5-2003 and accused Lallu was acquitted as per Annexure 1 to the Affidavit. Applicant Smt. Aneeta Bhatnagar Jain was District Magistrate, Kanpur Nagar at the relevant time and she had accorded sanction for prosecution for the offence under Section 25 Arms Act. THE respondent No. 2, while delivering the judgment and acquitting the accused, made certain warranted and uncalled for remarks against the petitioner and directed that copy of the judgment be sent to the Chief Secretary, State of U. P. for taking action against the petitioner and apprise the Court with the action taken. The said remark has been challenged on the ground that on the receipt of the report from Naubasta police, the petitioner accorded sanction on 1-9-2000 (Annexure 2 and 3 to the affidavit ). The recovered article were produced before the Zonal Magistrate and the same was sealed by him. The true copy of the said order is Annexure 4. It was further submitted that during the trial, the Court issued summons to the petitioner to appear as a witness. The photo copy of the same is Annexure 5 to the affidavit. In response to the said summon, the petitioner sent an application for exemption from his appearance for the said date whereupon the trial Court adjourned the case to another date but issued a notice under Section 350 Cr. PC. The photo copy of the same is Annexure 6 to the affidavit. The petitioner appeared before the Court, where her statement was recorded as PW 5, which is Annexure 7 to the affidavit. The petitioner was also directed to enquire and give reasons for the delayed service of summon on her and take action against the erring officials. In response to the said direction of the Court, the petitioner also took action against the concerned officials and informed the Court about the same, the copy whereof is Annexure 8 to the affidavit. So far as the remarks are concerned, they are unwarranted and based on no reason. In the normal course of trial, it was not necessary for the Court to have sent a summon to the District Magistrate to prove the sanction. The statement of the petitioner and that of investigating officer was recorded. The Court believed the statement of investigating officer and disbelieving the petitioner, passed the said adverse remarks. The petitioner is a senior IAS officer, posted now as Vice- Chairman of Kanpur Development Authority, Kanpur and in her entire service period there was no complaint against her. Such type of remarks would amount to misuse of process of Court, hence, prayed for quashing of the same. Notices were issued to respondents, but no counter-affidavit was filed. I have heard the learned Counsel for the applicant Sri S. P. Singh Raghav and Sri Atik Ahmad Khan and the learned AGA. I have also perused the statement of the petitioner and the Investigating Officer and the observation made in the judgment. The Annexure 2 is a copy of the report from SI R. B. Singh, investigating officer, who addressed a letter to District Magistrate, Kanpur for according permission for prosecuting the accused under Section 25 of the Arms Act in case crime No. 496/2000. The petitioner accorded the permission on 1-9-2000 after perusing the case diary and other papers. During the course of trial, statement of investigating officer was also recorded, which is Annexure 9 to the affidavit. The investigating officer has given statement that he has obtained sanction from the petitioner, when she was posted as District Magistrate, Kanpur, but he was not present before the District Magistrate, hence he could not say as to what paper he had perused or whether she had opened the country made pistol and cartridge or not. The statement of the petitioner was also recorded, a copy whereof is Annexure 7 to the affidavit, in which he has stated that she had perused the report of Magistrate, which is Annexure 4 to the affidavit and application of police (Annexure-2 to the Affidavit ). According to her, the investigating officer Sri Ravindra Bhan Singh was present before her. She has also stated that sealed bundle was opened in her presence and she examined the country made pistol, which was in working condition and case property was against sealed. The perusal of both the statements show that only contradiction appearing in the statement of investigating officer and that the petitioner is about the appearance of Investigating Officer before the District Magistrate. The investigating officer Sri Ravindra Bhan Singh has stated that he was not present before the District Magistrate, when she accorded the sanction whereas she has stated that SI Ravindra Bhan Singh was present before her. The other factors shall be discussed in later part of the judgment. However, this contradiction does not make liable to the District Magistrate for such remarks for the simple reason that there are two statements and there is nothing in the evidence to show that the statement of District Magistrate has to be disbelieved and that of investigating officer to be believed.
(3.) IN the finding recorded in the judgment, the trial Court has made certain observations at page Nos. 1, 3, 14 and 15 of the judgment. It has been observed by the respondent No. 2 that the statement regarding presence of investigating officer si contradictory and not reliable. No reason has been given as to why statement of the petitioner is unreliable and that of the investigating officer is reliable. If the Court was so much conscious about the fact, he should have called for the General Diary of the police station of the relevant dates, which could have shown whether the investigating officer left the police station to visit District Magistrate or not, but no such effort has been made. The respondent No. 2 again referred to the statement of the petitioner at page 3 and observed that statement of investigating officer and the petitioner is contradictory and again recorded the same finding that statement of the petitioner cannot be believed. The respondent No. 2 has also referred to various pages of the case dairy. The case diary prepared by the investigating officer cannot be the evidence to impeach the credibility of any witness unless it was proved by the investigating officer as against the petitioner. The fact recorded in the case diary cannot be used as evidence. The District Magistrate cannot be said to be liable for what has been recorded by the investigating officer in the case diary. The case diary is in the custody of investigating officer and it was never seen by the District Magistrate. The Court has further disbelieved the statement of the petitioner on the ground that her statement in regard to the cartridge and pistol for deciding the bore for pistol is not trustworthy, as the cartridge and the pistol was not produced before her. There is no basis for the Court to form such opinion. Learned Counsel for the applicant has submitted that the only fault of the petitioner was that the summon was sent to petitioner to appear as a witness but she could not appear, hence the notice under Section 350 Cr. P. C. was sent. The petitioner in compliance of the said notice appeared before the Court and submitted the report (Annexure 8 to the Affidavit), showing that the negligence was on the part of staff for not informing her and they were dealt with departmentally and they were awarded adverse entries in character rolls. Admittedly, the petitioner is a senior IAS officer, posted as Vice-Chairman of Kanpur Development Authority, Kanpur the summon was received in her office and it was their duty to place before the petitioner. Failure in discharge of duty on the part of officials was severally dealt with by the petitioner and officials were awarded adverse entries for non- compliance of the Court order. However, that was quite a different matter and on the explanation of the petitioner, the notice under Section 350 Cr. P. C. was discharged. This should not have been taken as the cause of any such remarks.;