- (1.) Heard Sri V.P. Srivastava, the learned Senior Counsel assisted by Sri Sangam Lal Kesharwani for the petitioners and Sri A.N. Mulla, the learned A.G.A. This writ petition challenges the order dated 25.4.2019, passed by the Addl. Sessions Judge / F.T.C.-I, Kushinagar at Padrauna, directing for registration of cases against the petitioners and the consequential FIR.dated 28.4.2019 as Case Crime No.235/2019, under Sections 195/211/220/323/330/197 IPC, P.S. Taraya Sujan, Kushinagar. 1. Brief facts are as under:- Petitioner no. 1, the Sub-Inspector, no. 2, the Investigating Officer and no. 3, the Constable of the P.S. concerned on 24.4.2019 allegedly recovered 1.9 kg. of ganja from accused Sarwan Yadav in Case Crime No.230/2019, under Section 8/20 of the N.D.P.S. Act, P.S. Taraya Sujan, Kushinagar. The accused was produced for remand before the Addl. Sessions Judge / F.T.C.-I, Kushinagar (Special Court) on 25.4.2019. The accused informed the court that he had been illegally detained for the last 4 days at the police station where he was subjected to physical torture and the alleged recovery is fake and planted. The medical report of the accused prepared by Dr. Sanjay Kumar, C.H.C., Tamkuhiganj did not indicate any pain or injury. The Special Court physically examined the injuries of the accused and found several injuries on his body and directed the C.M.O., Kushinagar to get the accused examined by a board of 2 doctors for fresh medical examination. The Board examined the accused and reported as many as 17 injuries. The Board opined that out of 17 injuries, injuries nos. 2, 7, 11, 12, 15, 16 & 17 are old, injuries nos. 1, 3, 4, 5, 8, 9 & 14 are 3-5 days old, injury no. 6 is a week old, injury no. 13 is an inflammatory lesion and injuries nos. 5 & 10 are hard blunt trauma. The court below on above materials, was of the view that prima facie the contention of the accused that he was subjected to physical torture in police custody, is made out and while refusing to grant further remand of the accused, directed for his immediate release on personal bond, imposed a penalty of Rs.1000/- each on the petitioners, which was directed to be paid to the accused after deduction from their salary with a simultaneous direction for prosecution against the petitioners under Section 195/211/220/323/330 IPC and under Section 197 IPC against the doctor concerned along with a direction to send a copy of the order to the authorities concerned. Pursuant thereto, respondent no.4 lodged the above FIR.against the petitioners, i.e., the Sub-Inspector, the Investigating Officer, the Constable of the police station concerned and the doctor, (non-petitioner).
(2.) Sri Srivastava, the learned Senior Counsel for the petitioners challenged the correctness of the order dated 25.4.2019 and the FIR.dated 24.5.2019 on the ground that Section 195(1) of the Code specifically prohibits that no court shall take cognizance except on a complaint in writing of that court or by any designated officer of the court in respect of the offences specified therein, thus both the order and the FIR.are in teeth of the statutory prohibition, same are liable to be quashed.
(3.) Sri Mulla, the learned A.G.A. submits that it would be in the fitness of things if a direction is given to the complaint magistrate to treat the FIR.as a complaint. He had already on the previous date, i.e., 13.5.2019 submitted that considering the nature of issue involved, he does not propose to file any counter affidavit, writ petition be disposed off on available materials.;