- (1.) VINOD Prasad, J. Custodial death is a slur on any civilised society. It projects criminality on the part of those who are custodians of law. Such crimes are inexcusable and deserve proper treatment. This case is one of such cases and has emanated from a very unfortunate incident. One Pappu Verma, a very young man at the prime age of his life, 37 years, lost his life in custody. His post-mortem was conducted on 25. 4. 2007 at 6. 15 p. m. In the postmortem examination report, a ligature mark was found on the upper part of his neck. The cause of his death was indicated as asphyxia as a result of ante-mortem hanging.
(2.) IN respect of the death of Pappu Verma, an application under section 156 (3) Cr. P. C. was filed by Babadeen, father of the deceased, on 26. 4. 2007. The j allegations levelled in the application under section 156 (3) Cr. P. C. were that Babadeen is a very poor person and his son aforesaid Pappu Verma (deceased) was detained in prison under the NDPS Act and he was being produced before the Court of law on the date of remand. Whenever Pappu Verma met Babadeen on the dates of his remand, he used to make complaints about P. K. Shukia, Jail Superintendent, Deputy Jailor Umesh Singh, constable Raman Prasad and constable Kaushal Kishore regarding demand of money of Rs. 1000/- from him and for non-fulfillment of the same assault him. Applicant Babadeen being a very poor person, could not arrange the said money. It was further alleged that, on 25. 4. 2007, because of non-fulfillment of the aforesaid demand the aforesaid Pappu Verma was done to death by the aforementioned accused, persons and to cover up their design, accused persons have projected the crime as a suicide and sent the dead body for post-mortem examination. With such allegations, the complainant filed an application under section 156 (3) under Chapter XII Cr. P. C. relating to power of police to register the FIR of cognizable offence and investigate the offence disclosed, invoking administrative jurisdiction of the Magistrate to direct the police to register the FIR of a cognizable offence as, according to the applicant, the police have failed to register his FIR of cognizable offences regarding death of his son Pappu Verma. It transpires from the record that on the said application, Chief Judicial Magistrate, Barabanki on 28. 5. 2007 ordered to register the application under section 156 (3) Cr. P. C. as a complaint case citing ruling of the Apex Court in Lucknow Criminal Revision 2001 (2) 320, Joseph Madhuri v. Swami Sachchidanand Hari Sakshi and fixed 2. 6. 2007 for recording of the statement under section 200 Cr. P. C. The said order was challenged by Babadeen before the Sessions Judge, Barabanki in Criminal Revision No. 102 of 2007, Babadeen v. State of U. P. The aforesaid revision was allowed by the Sessions Judge, Barabanjd vide its impugned order dated 3. 7. 2007, who quashed the order of Chief Judicial Magistrate, Barabanki dated 28. 5. 2007 treating the application under section 156 (3) Cr. P. C. as a complaint and remanded the matter to the Magistrate to pass a fresh order in accordance with the directions made in the order passed by the lower Revisional Court in the aforesaid revision. The alleged accused persons of the murder of Pappu Verma have challenged the lower Revisional Court's order dated 3. 7. 2007 in this application under section 482 Cr. P. C. invoking the inherent jurisdiction of this Court.
(3.) I have heard Dr. L. P. Misra, assisted by Sri Sharad Pathak and Sri Sanjay Misra, Advocates in support this application and Smt. Suniti Sachan, learned AGA, on behalf of the State and Sri Farooq Ayub, learned Counsel for Babadeen, the victim. Counsel for the applicants vehemently harangued that in this case Magisterial enquiry is already going on, therefore, there was no need for registration of FIR. Learned Counsel has contended that the CJM. Barabanki had not closed the matter for the informant and he directed to proceed with the case as complaint case and, therefore, the Revisional Court has committed manifest error by setting aside the order passed by the Chief Judicial Magistrate. Learned Counsel further contended that the deceased had committed suicide as is evident from the post-mortem examination report and he was not murdered and the allegations levelled in the application under section 156 (3) Cr. P. C. are wholly fictitious and mala fide. Learned Counsel further contended that once the Magisterial enquiry has been initiated, there was no need for registration of the FIR as that will frustrate the very purpose of Magisterial enquiry. Learned Counsel further contended that the Revisional Court wrongly relied upon case-law of Madhubala v. Suresh Kumar. 1997 (35) ACC 371. Learned Counsel further contended that the said judgment carry contrary views taken by the lower Revisional Court and invited the attention towards sections 2 (g) and 2 (h) Cr. P. C. and contended that the impugned order passed by the lower Revisional Court is unjustified and deserves to be set aside. Learned Counsel lastly argued that if the above contentions raised before this Court do not find favour, this Court should at least protect the interest of the applicants as the applicants are Government servants and they may be allowed to furnish personal-bonds during the period of investigation.;