Section 29 Police Act 1861| Same Magistrate Cannot Be The Witness And The Judge Himself: Allahabad HC

The Allahabad High Court recently, in the context of Section 29 of the Police Act 1861, observed that the same Magistrate cannot be the witness and the judge himself.

The bench further observed that the procedure adopted by the Magistrate to proceed against the petitioner (S.H.O.) in the present matter was therefore, not in conformity with the provisions of Regulation 486 in relation to neglect of duty under Section 29 of the Police Act 1861.

Accordingly, a bench of Justice Shamim Ahmed of the Lucknow Bench while setting aside the order of the Additional District and Sessions Judge, Court observed, "The aforesaid provision also indicates that the matter shall be taken up by the Superintendent of Police departmentally or by the District Magistrate in manner indicated above. In the event the Magistrate himself takes notice of it then in view of the provisions of Section 190 Criminal procedure Code as referred to therein, the matter will have to be sent to another Magistrate for conducting the enquiry after putting the Officer to notice. 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". 

In the present matter, it was the case of the petitioner that the police recovered a Truck and an lodged an F.I.R. under Sections 41, 411, 413, 420, 467, 468, 487 IPC.

The court of the Additional District and Sessions Judge then issued an order to get the physical verification report of the case property i.e. Truck. Thereafter, the S.H.O. Mankapur, Gonda sent a letter to the Regional Transport Officer for physical verification. The In-charge Inspector (S.H.O.), then submitted an application for extension of time for physical verification of the aforesaid truck.

Trial court then through a letter directed the Superintendent of Police to take action against the S.H.O. and also to submit the physical verification report before the court. Thereafter, the trial court issued notice to the S.H.O. to submit his explanation to the notice issued personally.

Thereafter, the Assistant Regional Transport Officer (A.R.T.O.), Gonda completed the physical verification of the truck and submitted its report to the S.H.O. Mankapur, Gonda, which was submitted by him before the learned trial court on 12.09.2023.

However, as per the petitioner he was on urgent duty, therefore, he failed to appear on the said dated for adducing his evidence. Subsequent to which, the l trial court passed the impugned order punishing the petitioner under Section 29 of the U.P. Police Act and lodging F.I.R. against the petitioner under Section 406 IPC.

It was also contended that as per the report submitted by the Assistant Regional Transport Officer there was no allegation of theft or misappropriation of any valuable part of case property. The police arrested the accused Ram Tirath with truck in question which contains different chasis number and engine number. The said truck was not registered in the office of R.T.O., Gonda and the number plate was also false and fabricated.

The State, however, argued 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 was liable to be dismissed.

The bench, thus after considering the relevant facts and circumstances set aside the order leaving it open to the competent authority to proceed in accordance with the provisions as indicated in the order in the event such powers can be invoked on the facts of the present case.

Appearance: For the Petitioner: Advocates Ashok Kumar Singh, Mukesh Sharma

For the Respondent: A.G.A.-I S.P. Tiwari

Cause Title: - Raj Kumar Saroj v. State Of U.P. Thru. Prin. Secy. Home [Neutral Citation No. - 2024:AHC-LKO:8457]

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