Ravindra Singh - (1.) HEARD Sri V. P. Srivastava, senior advocate assisted by Sri Lav Srivastava and Sri Vinod Tripathi, learned counsel for the applicant and learned A.G.A. for the State of U. P.
(2.) THIS application has been filed by the applicant Rajaram Dwivedi with a prayer to quash the proceedings including the charge-sheet and summoning order of Criminal Case No. 883 of 2008 under Sections 147, 148, 149 and 304, I.P.C. pending in the Court of learned A.C.J.M., Court No. 17, Etah. It is contended by learned counsel for the applicant that on the day of the incident of this case, the applicant was posted as Sub-Inspector at P. S. Awagarh, district Etah. On 8.11.1987, he was on patrolling duty, its entry was made in the G.D. No. 24 time 20.15 dated 8.11.1987, when he was on patrolling he received information that in the house of one Chhakkan Kumhar in village Kalyanpur two or three miscreants are assembled who may commit some offence, relying upon that information the applicant alongwith other police personnel came at the house of Chhakkan Kumhar in village Kalyanpur at 8.45 p.m. where three women were lying under a chhapar. The applicant gave his introduction by clearly stating that he and other persons were of police department, the applicant enquired about the Chhakkan from the women who replied that Chhakkan had gone out. Thereafter the applicant and other police personnel checked the roof of the house where two persons came out from a hut and escaped from there, they made hue and cry also in the village by shouting that badmash had come, on that, the people of village also shouted and applicant and other police personnel were attacked by them by way of pelting stones and discharging the shots towards them. The applicant and other police personnel also shouted by saying that they were police personnel but nobody was relying upon, thereafter under order of the applicant, his companions discharged the shots and any how the applicant and other police personnel could save their lives by escaping from the village. Its F.I.R. has been lodged by the applicant at P. S. Awagarh on 8.11.1987 at 9.40 p.m. in Case Crime No. 151 of 2007 under Sections 147, 148, 149 and 307, I.P.C. thereafter in respect of the same incident the cross F.I.R. in Case Crime No. 151A of 1987 under Sections 147, 148, 149 and 302, I.P.C. was lodged by Balak Ram, O.P. No. 2 at P. S. Awagarh on 9.11.1987 at 0.30 a.m. alleging therein that five or six unknown miscreants who were in the police dress came to the village Kalyanpur and enquired about the Chhakkan, thereafter they came on the roof of house of Chhakkan where his mother, Bhabhi and wife were sleeping, on the same roof one Net Ram, the brother-in-law of the Chhakkan and Ram Prakash and son of the Chhakkan were also sleeping, they escaped from there by shouting that miscreants (badmash) had come. The villagers came at the another point of the village and pelted the stones and discharged the shots also but due to firing done by the miscreants one Pappu son of Basudev succumbed to his injuries on the roof. But during investigation on the basis of G.D. entry made by the applicant, the applicant and other police personnel had gone to the alleged place of occurrence and no badmash had gone. The applicant and other police personnel were on their official duty, under the wrong impression the people of the village attacked on them, any how they could save their lives by escaping from the village. During investigation no such evidence has been collected by the Investigating Officer to show that applicant has committed the alleged offence, even without collecting the credible evidence the charge-sheet has been submitted against the applicant only on the basis of presumption. During investigation the statement of the witnesses have been recorded by the Investigating Officer. According to their statements also some unknown miscreants in police dress came in the village who had committed the alleged incident. There is no specific allegation against the applicant and without perusing the police report learned Magistrate concerned has taken the cognizance and summoned the applicant to face the trial. The summoning order dated 21.4.1997 is illegal. The prosecution of the applicant is also illegal, therefore, the proceedings pending against the applicant may be quashed. In reply of the above contention, it is submitted by learned A.G.A. that admittedly the applicant and other police personnel went to the village Kalyanpur where the alleged incident had occurred, one Pappu lost his life after sustaining gun shot wound of entry because the firing was done by the applicant and other co-accused persons. Even according to the G.D. Entry, the Rawangi has been made by the applicant, there was no reference that applicant and other police personnel were going to Kalyanpur but after committing the alleged offence the F.I.R. has been lodged by the applicant without disclosing the fact that in the said incident one Pappu had lost his life, non-disclosure of this fact shows the applicant has not come with clean hands. The alleged offence has not been committed during discharge of the duty, therefore, the applicant is not entitled to get any legal protection. On the basis of material collected by the Investigating Officer and by own admission of the applicant in the F.I.R. lodged by him at the police station, the applicant has actively participated, there is sufficient material to proceed further against the applicant. There is no illegality in filing of the charge-sheet and in taking the cognizance by learned Magistrate concerned. The present application is devoid of merit, the same may be dismissed.
(3.) CONSIDERING the facts, circumstances of the case, submissions made by learned counsel for the applicant, learned A.G.A. and without expressing any opinion on the legal issues as of sanction etc., raised by counsel for the applicant because the same may affect the trial of the applicant and other stages, it appears that Investigating Officer has committed no error in submitting the charge-sheet on the basis of material collected during investigation. The learned Magistrate concerned has also not committed any error in taking the cognizance on the basis of charge-sheet submitted in the Court and there is no illegality in the prosecution of the applicant because in the present case one person has lost the life. According to the post-mortem examination report, he had sustained one gun shot wound of entry having its exit wound. Its explanation has not been given by the applicant in the F.I.R. lodged at police station in respect of the said incident. There is no good ground for interfering in the proceedings pending against the applicant in Criminal Case No. 883 of 2008 under Sections 147, 148, 149 and 304, I.P.C. therefore, the prayer for quashing the charge-sheet dated 10.3.1997, order dated 21.4.1997, passed by A.C.J.M., Court No. 17, Etah by which the cognizance has been taken and applicant and other co-accused persons have been summoned to face the trial, therefore, the prayer for quashing the proceeding including the charge-sheet and summoning order dated 21.4.1997 is refused. However, considering the submissions, made by learned counsel for the applicant the applicant is a retired and old person, it is directed that applicant shall appear before the courts below within three months from today, till then the N.B.W. issued against the applicant shall be kept in abeyance. In case, he applies for bail, the same shall be heard and disposed of expeditiously by the courts below.;