- (1.) WE have heard Sri P. C. Srivastava, learned Counsel for the petitioner, Sri Adish C. Agarwal, learned Addl. Advocate General, and Sri S. N. Singh, learned Counsel for respondent No. 4.
(2.) THIS writ petition has been filed by Omkar Yadav for the relief that the respondents-S. P. , Sant Kabir Nagar, SHO of PS Ghanghata, District Sant Kabir Nagar-be directed to arrest and produce respondent No. 4, Rambriksh Yadav, before the CJM, Sant Kabir Nagar, in case No. 241 of 2006, under Sections 147, 148, 149, 308, 302, 323, 504, 506 IPC and 7 Criminal Law Amendment Act and Sections 134-B, 135 of the Peoples' Representation Act and/or to issue a writ order or direction which this Court may deem fit and proper. At the time of gram panchayat elections which were being held at Jainarain Inter College, Gaur, Sant Kabir Nagar on 25-8-05 at 2. 15 p. m. some dispute arose between the side of the informant, Rakesh Kumar, son of the deceased, Mahatam Yadav, who was supporting the candidature of his sister-in-law Smt. Champa Devi and Hanuman Yadav over casting of fake votes. Hot words were exchanged and Hanuman Yadav's supporter Manoj Gupta called Rambriksh Yadav, from Gaighat polling booth. Rambriksh arrived at the election site with his gunner, Prem Singh, and other supporters. They began assaulting the informant and others with lathis. When the public tried to intervene, respondent Rambriksh Yadav became more aggressive and cried out that Mahatam and his family members should be finished. Then he snatched the carbine machine gun of his gunner, Prem Singh, and fired at chest of the deceased Mahatam who died at the spot. As a result of the lathis plied by the supporters of Rambriksh, informant Rakesh Kumar, his uncle Janardan Yadav, Jai Prakash Yadav and Onkar Yadav were injured. In that incident, although a charge-sheet was submitted against the other named accused but respondent, Rambriksh Yadav, the principal accused was exonerated.
(3.) A writ petition (Crl. Misc. Writ Petition No. 60 of 2006, Omkar Yadav v. State of U. P. & Ors. [since reported in 2006 (2) JIC 268 (All)]) was filed by the petitioner in which an order was passed by Hon. R. C. Deepak and Hon. G. P. Srivastava, JJ. on 24-3-2006 observing that as the report was lodged with great promptitude at 4. 20 p. m. on the date of the incident and even the official gunner of Rambriksh Yadav, namely, Prem Singh, had lodged a report alleging that the Respondent had seized his carbine gun and fired at the deceased and as the main role of killing the deceased, Mahatan Yadav, was attributed to Rambriksh Yadav alone, hence the exoneration of Rambriksh Yadav on the basis of some affidavits etc. was patently illegal and it appeared to be the result of the political manipulation of Rambriksh Yadav who belonged to the ruling Samajwadi Party. The bench further observed that the investigating officer was not justified in relying on certain affidavits in preference to the statements recorded under Section 161 Cr. P. C. which had named Rambriksh as the assailant of the deceased. The cross-report of the incident, which was lodged after 16 days of the alleged occurrence by Rambriksh, appeared to be a manipulated cross version. Hence, in such circumstances, the Court observed that the "only venue where it could have settled after recording the evidence of both the parties is only the Court of Law. The police has no right to usurp its jurisdiction to itself and to exonerate anyone without even facing any semblance of any trial, a farce it is which cannot be digested by the Court. " The Division bench further held that "the learned Magistrate is directed to take cognizance against him (Ramvriksh Yadav) and commit the case to the Court of Session alongwith other co-accused, who have already been charge- sheeted to face the trial in accordance with law. " We think that the Division Bench of Hon'ble R. C. Deepak and Hon'ble G. P. Srivastava JJ needed to pass this strong and unusual order only because the concerned Magistrate appeared to have blithely and mechanically accepted the report exonerating the Respondent submitted by the police and to have failed to consider whether on the material on the record there was sufficient material to take cognizance against the respondent. However, inspite of the clear and categorical order and observations of the Division Bench the CJM Basti, Sri M. P. Singh Yadav appears to have proceeded in a very lackadaisical manner in violation of the tenor and spirit of the order of the Division Bench dated 24-3-06 and to have merely issued summons for the appearance of the accused on 4-4-06. As the order sheet from 4-4-06 to 8-8-06 filed by the petitioner shows that for the flimsiest reasons he has permitted the accused not to appear in Court in response to the summons, and avoided taking any coercive measures such as issuing non-bailable warrants for the arrest of the Respondent No. 4, which were called for in these circumstances in the light of the provisions of Section 87 of the Code of Criminal Procedure. The said provision entitles a Court to issue warrant for the arrest of an accused if either before the issue of summons, or thereafter before the time fixed for appearance or in the event of an accused failing to appear inspite of service of summons without good reason, which gives the Court cause to believe that the accused has absconded or will not or is not obeying the summons.;