The Allahabad High Court held that the same Magistrate cannot be the witness and the judge in the case initiated by him against the SHO (Inspector In-Charger) under Section 29 of the UP Police Act and in case a Magistrate other than the District Magistrate receives the complaint, the same should be reported to the District Magistrate.
Brief Facts:
A Truck was recovered by police of Police Station Mankapur, District Gonda and an F.I.R. was lodged under Sections 41, 411, 413, 420, 467, 468, and 487 IPC. The Additional District and Sessions Judge, Court No.3, Gonda directed the SHO Kotwali Mankapur, Gonda to get the physical verification report of the truck. When the SHO sought a time extension for physical verification, the Court below directed the Superintendent of Police, Gonda to take action against the SHO and also submit the physical verification report before the trial court. Thereafter, the physical verification report was submitted by the SHO. The trial Court proceeded to register a case against the SHO and directed him to furnish an explanation. Petitioner informed the trial court that he had just taken charge of the post. Subsequently, notice was issued to the Superintendent of Police, District Baghpat directing him to produce the then SHO, namely, Sudhir Kumar Singh for evidence in the recovery of the truck case. Since Sudhir Kumar Singh had not reported in District Baghpat, a non-bailable warrant was issued against him, with a direction to the petitioner to produce him.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the petitioner no case is made out against the petitioner under Section 406 I.P.C. as the petitioner has not committed any willful breach and is also not guilty of any violation of duty or neglect or any lawful order made by competent authority even he was also not a party in the Misc. Case No.554/2023, hence, the punishment order against the petitioner is absolutely illegal, arbitrary and malafide. He further submitted that the impugned order suffers from material illegality and infirmity, which apparently from the face of the record appears to be unsustainable in the law and the same is liable to be set aside as the same is passed in gross violation of the law.
Contentions of the Respondent:
The learned counsel appearing on behalf of the respondent submitted that the impugned order has been rightly passed by the learned trial court after due consideration of material available before it, as such, it does not require any interference by this Court, therefore, the instant petition is liable to be dismissed at this stage only and further submitted that the petitioner has not performed his duty in compliance of the direction of the Magistrate, the punishment was justified and the petitioner can avail of his remedies as available to him in law.
Observations of the court:
The court noted that the charge leveled by the learned Magistrate during a judicial proceeding against the petitioner was of breach of duty by not complying with the directions of the Court and the learned Magistrate, therefore, proceeded to issue a notice to the petitioner calling for an explanation and thus power was exercised by the Magistrate purportedly under Section 29 of the Police Act, 1861.
The court referred to Section 29 and noted that the said provision indicates that a person has to be found guilty of a violation of duty or wilful breach or neglect of any rule or regulation or a lawful order made by the competent authority, and if the same results in conviction by a Magistrate, then a penalty shall be imposed not exceeding three months pay or imprisonment in the manner prescribed therein.
The court observed that Regulations 484 and 486 of the UP Police Regulations provide the procedure for conducting an inquiry under Section 29 of the UP Police Act. Regulation 484 provides that such complaints can be dealt with by the District Magistrate only. In case a Magistrate other than the District Magistrate receives the complaint, the same should be reported to the District Magistrate.
It was stated that the procedure therefore makes it amply clear that the same Magistrate cannot be the witness and the judge himself. The procedure adopted by the learned Magistrate to proceed against the petitioner was therefore not in conformity with the provisions of Section 29 of the Police Act 1861 read with the Regulations referred to hereinabove.
The decision of the Court:
The court allowed the petition and set aside the impugned order.
Case Title: Raj Kumar Saroj vs. State of U.P.
Coram: Hon’ble Mr. Justice Shamim Ahmed
Case No.: MATTERS UNDER ARTICLE 227 No. - 414 of 2024
Advocate for the Petitioner: Ashok Kumar Singh and Mr. Mukesh Sharma
Advocate for the Respondent: S.P. Tiwari
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