R.K.Rastogi - (1.) -This is a revision against the judgment and order dated 8.6.2007 passed by Sri R. K. Mishra, learned Additional Sessions Judge, Court No. 2, Banda in Criminal Revision No. 165 of 2006, Jokhu Khan and others v. State of U. P. and another.
(2.) THE facts relevant for disposal of this revision are that the complainant revisionist Lalit Kishore had filed a complaint against the accused Jokhu Khan, Ram Kumar, Kalu Ram Doharey and Rasik Kishore Singh (opposite party Nos. 2 to 5) in the Court of the learned C.J.M., Banda under Sections 114, 116, 167, 193, 323, 340, 504, 452, 506, I.P.C. with these allegations that the accused Jokhu Khan who was then S.O. in-charge of P.S. Baberu District Banda, and Kalu Ram Doharey in-charge Inspector P.S. Kotwali, Baberu and Constable Ram Kumar (opposite party Nos. 2 to 4) had forcibly entered the house of Lalit Kishore and Shyam Kishore at Baberu District Banda on 4.8.2004 and had forcibly taken them to police outpost Murval where their younger brother Rasik Kishore Singh (accused opposite party No. 5) and his wife Rita were also present. Jokhu Khan and Kalu Ram Doharey, accused opposite parties No. 2 and 3 alongwith police personnel beat them by shoes, Chappals and sticks and thereafter the police challaned the complainant on 5.8.2004 under Sections 151, 107 and 116, Cr. P.C. THE complainant, on account of this beating, got injuries. He got his injuries medically examined in the District Hospital Banda on 6.8.2004 and then filed a complaint against the accused opposite parties which was registered as Criminal Case No. 4224 of 2004 in the Court of C.J.M., Banda. All the accused persons including the police personnel named in the complaint were summoned vide order dated 10.11.2004. After this summoning order had been passed, the accused opposite party Nos. 2 to 4 moved an application under Section 197, Cr. P.C., asserting that they had challaned the complainant under Sections 151, 107 and 116, Cr. P.C., in exercise of their official duties because he was fighting with Smt. Rita Soni and had assaulted her and so the proceedings under Section 107/116 and 151, Cr. P.C., were drawn. Hence, the present complaint was not maintainable without obtaining sanction for their prosecution under Section 197, Cr. P.C. As against this application, the complainant's learned counsel took an objection that the accused had not put in appearance before the Court, and so the application under Section 197, Cr. P.C., was not maintainable without their appearance in person before the Court. The learned Magistrate upheld this objection and rejected the application under Section 197, Cr. P.C. Aggrieved with the above order the accused opposite party No. 2 to 5 filed an application under Section 482, Cr. P.C., before this Court bearing Criminal Misc. Case No. 6408 of 2006, Jokhu Khan and others v. State of U. P. and others. This application was disposed of by this Court vide its order dated 8.6.2006 with a direction that the application of the accused shall be considered only when they put in their appearance before the Lower Court. The said order is as under : "Heard learned counsel for the applicants and the learned A.G.A. Learned counsel for the applicants contended that the applicants are ready to appear before trial court on or before 19th June, 2006. In this view of the fact, the non-bailable warrant against the applicants shall remain stayed till 19th June, 2006. It is made clear that all the applications of the accused shall be considered only if they have put in their appearance before Court. With the aforesaid direction, this application is disposed of finally."
(3.) THEREAFTER, the accused moved another application under Section 197, Cr. P.C., before the C.J.M. Again an objection was taken from the side of the complainant that the accused had not personally appeared and had not applied for bail and so the application under Section 197, Cr. P.C., moved by them could not be entertained. This objection was upheld by the learned C.J.M. and so the application under Section 197, Cr. P.C., was rejected for non-compliance of the order of this Court passed in the aforesaid criminal misc. case under Section 482, Cr. P.C. Aggrieved with that order, the accused filed Criminal Revision No. 165 of 2006, before the Sessions Judge, Banda which was decided by the Additional Sessions Judge, Court No. 2, Banda vide his judgment dated 8.6.2007. He was of the view that there was no direction of this Court that the accused must appear personally before the trial court and apply for bail before that Court, and then only their application under Section 197, Cr. P.C., can be considered on merits, and so there was no legal requirement to do so, and when the application under Section 197, Cr. P.C., had been moved, it was necessary to decide that application on merits and it could not be rejected on the ground that the accused had not appeared personally and had not applied for bail. With these observation he allowed the revision, set aside the order passed by the C.J.M., Banda, and remanded the matter to the C.J.M., Banda to rehear the application under Section 197, Cr. P.C. Aggrieved with that order the complainant has filed this revision.;