- (1.) AMAR Saran, J. This application has been filed with a prayer for setting aside the order dated 6. 12. 2005 passed in Case Crime No. 3 of 2004 (Hakim Singh v. S. P. Yadav) and also to quash the process of re-investigation, pursuant to the impugned order, passed by CJM, Agra. It is also prayed that no coercive measures be taken pursuant to the aforesaid impugned order.
(2.) THE allegations in the FIR lodged on 20. 1. 2004 at 11. 45 a. m. by informant, Hakim Singh, at PS Hariparvat, District Agra, were that the applicant, who was a jailer, along with some other jail officials gave a severe beating to the deceased, Siya Ram, who was the brother of the complainant, in the jail premises, which resulted in his death. THE accused also tried to conceal the evidence against them. It was alleged in the FIR that Siya Ram was sent to jail on 6. 8. 2003 by showing a fake police encounter and a case was registered against him at Case Crime Nos. 85 of 2003 under sections 307 IPC and 86/2003 under the Arms Act. Although the deceased had been granted bail in both the cases, on account of his poverty he could not furnish bail bonds and was not released. The jail officials were demanding of Rs. 750/- from him as a price for saving him from the barbarity that was being perpetrated on him in the jail premises and on his failure to pay the said amount, the accused tied up his hands and legs and assaulted him brutally. This manner of assault went on for many months. It was alleged that the applicant was personally supervising the said beatings with lathis and shoes meted out to Siya Ram by Circle in charge Vir Pal, Constable Yogesh and five or six other constables. They even forced the deceased to collect human faeces. Even though, the jail superintendent, S. P. Yadav, had information of these beatings, he did not interfere. The deceased was unable to walk around because of the beatings he had received. On 13. 12. 2003 on receiving the information that the applicant and other jail officials and constables had murdered his brother, the informant reached the district jail. He saw many marks of injuries on his brother's dead body. This fact was disclosed to the informant by many jail inmates but they were afraid to give their names as witnesses for fear of reprisals. In order to save themselves and to conceal the evidence, some prisoners were intimidated into giving statements that the deceased was insane and he had caused his own death by banging his head against the wall whereas the post-mortem report showed as many as 14 injuries on the dead body. After receiving the post-mortem report the informant had lodged the FIR dated 18. 12. 2003. However it appears that the FIR was only registered on 20. 1. 2004 at 11. 45 a. m. after an order for registration of the case was passed under section 156 (3) Cr. P. C. by a Magistrate. By a short application, which gave no reasons, a final report was submitted on 22. 1. 2004 by the investigating officer of P. S. Hariparvat stating that no case under section 302/201 was disclosed against the accused, S. P. Yadav and others, and no evidence could be collected that the applicant and the other jail officials had caused the death of the deceased.
(3.) ON 3. 12. 2005 an application under section 173 (8) Cr. P. C. was moved by Inspector, CBCID, Agra, before the CJM, Agra, through the A. P. O. seeking permission for re-investigation into the matter on the ground that the Government desired fresh investigation on the recommendation of the National Human Rights Commission. Thereafter, an order was passed by the CJ. M. on 6. 12. 2005 setting aside the final report and granted permission to the Inspector, CB CID, Agra, to re-investigate the case. Principally it was argued by the learned counsel, placing reliance on the decision of K. Chandra Sekhar, etc. v. State of Kerala and others, 1998 (37) ACC 136, that an order for re-investigation was illegal and only an order for further investigation could be passed in view of section 173 (2) and 173 (8) Cr. P. C. In paragraph 12 of the affidavit filed in support of this application it is also stated that after a thorough investigation the final report had been submitted and the order allowing the application for re-investigation had been passed by the CJM in a mechanical and arbitrary manner.;