D.B. Saxena v. State Of U.P.

1. These are two connected Misc. Applications Nos. 7899 of 1980 and 8010 of 1980 preferred under S. 482 Cr. P.C In both the applications preferred by Sri D.B Saxena, Food Inspector, a prayer has been made that the adverse observations made by Sri S.S Nimesh, Judicial Magistrate, 1st Class, District Meerut, in his judgments dated 14-7-1980 annexed in the applications may be quashed.

2. The observations which are sought to be expunged have been quoted in paragraph 18 of the Misc. Application No. 8010 of 1980 and paragraph 15 of Misc. Application No. 7899 of 1980. The Magistrate made an acquittal in this case as the only witness examined was P.W 1 Sri D.B Saxena applicant and he too did not appear for his cross-examination on the date fixed when the evidence was ultimately closed.

3. It is submitted that before his transfer Sri Saxena after his statement in examination-in-chief did appear in the court of Judicial Magistrate and preferred applications for summoning other witnesses. It is submitted that thereafter as he himself stood transferred he could not appear on his own unless summoned from Roorkee District Saharanpur through the Chief Medical Officer. A number of applications given by Sri Saxena in course of hearing have been annexed. The first application is dated 22-11-1979 praying that other P.Ws are required. Second application was preferred on 28-2-1980 also stating the names of other witnesses and their addresses and praying that their summons may be issued. The third application was preferred on 18-3-1980 again praying that summons issued by the court have not come back after service and summons may be issued afresh. There is another application dated 17-5-1980 filed in Misc. Case No. 7899 as annexure 5 by the very official in this application it has been stated that while witness has attended the court many times on previous days his statement under S. 246 Cr. P.C has yet not been recorded.

4. It was further stated that the witness has been transferred to Roorkee and may be summoned whenever he is required through C.M.O Saharanpur. It would, further, appear from the next annexure that the next Food Inspector Sri R.C Sisodhiya, then preferred an application on 26-6-1980 praying that another date be given and fresh summons may be issued. It would further appear that when on the subsequent date also none appeared for the prosecution the Magistrate vide his judgment dated 14-7-1980 disposed of the case making acquittal the judgments of the Magistrate do not indicate that actually personal service was made and yet the Food Inspector did not turn up. It would no doubt appear that in the judgment in case No. 482 of 1979 to which Misc. Application No. 8010 relates, the Magistrate observed that Food Inspector, Sri Saxena did not put in appearance for his cross-examination under S. 246 Cr. P.C for which sufficient time has been given. That observation is erroneous as I have already referred to a number of applications preferred by the Food Inspector, Sri Saxena praying for time for other witnesses and also making request that summons be issued. That itself indicates that he was present on a number of previous dates. Even if other witnesses had not truned up when this particular witness was present, the Magistrate should have very well recorded his statement in cross-examination.

5. Sri Saxena when transferred to another District preferred an application in writing that he has been transferred to Roorkee, District Saharanpur and now his summons may be sent to that District Once he stood transferred and was succeeded by Sri Sisodhia, either court should have summoned the other witnesses or Sri Sisodhia should have produced them. The complaint was filed in official capacity and such official when transferred to another district would neither be in position to come unless proper summons are issued through the superior Officer of the staff and permission is accorded nor he would be able thereafter to procure witnesses or himself serve summons upon them. The observations made by the Magistrate, and laid by him, are not proper and uncalled for. That may, on the one hand, mar the career of the Food Inspector, Sri Saxena and on the other hand may be used by the department against him for penalising him on this basis. A great hardship would be caused to Sri Saxena if the observations made against him by the Judicial Magistrate in two cases to which these Misc. applications relate are not expunged.

6. In the result, the applications are allowed and the following observations made in lower court's judgment dated 14-7-1981 (Annexure 5) to which Misc. Applications No. 8010 relates are expunged:

“Parantu Wah Swaim Dhara S. 246 Cr. P.C Ke Tahat Jirah Hetu Upasthit Nahin Hua Hai Jabki Use Is Babat Kafi Samai Awasar Diye Gae.

Issue Bhi Yah Zahir Hota Hai Ki F.I.D.B Saxena Mulzim Se Saajh Kar Gaya Hal Isi Karan Usne Na To Koee Anya Sakchhiya Pesh Kiya Hai Aur Na Hi Swaim Hi Bachao Parchh Dwara Pesh Karney Hetu Upasthit Hua Hai. Is Tathiya Se is Karmachari Ko D.B Saxena Ki Sambandhit Preteet Hota Hai. Aur Aise Karmachari Ko Jitni Bhi Bhartasan Ki Jawe Prayah Thodi Hal Kiyonki Aise Karmachari Se Apne Vibhag Ka Nishpakch Karya Hona Prayah Asambhav Rahta Hai.”

7. In the like manner the following observations made in paragraph 15 of the judgment dated 14-7-1980 of the Judicial Magistrate (Annexure 7) to which Misc. Application No. 7899 relates are also expunged:

“Yahan Tak Ka Swaim P.W Sri D.B Saxena Bhi Jirah Hetu Upasthit Nahin Hue Hain Jab Ki Usey Swaim Jirah Ki Babat Upasthit Honey Ke Liye Kafi Samai Wa Awasar Diye Gae Parantu Aisa Vidit Hota Hai Ki Jaan Bhoojh Kar Upashthit Nahin Hua Aur Anya Gawah Ko Pesh Kamey Babat F.I Shri D.B Saxena Ney Koee Dilchaspi Nahin Li Uske Karan Mulzim Se D.B Saxena Swara Sakchh Kama Prateet Hota Hai Wama Koee Karan Nahin Ki Pariwadi Swaim Bhi Sakchhya Hetu Upasthit Nahin Hota.”

“Is Taithya Se is Prakar Karmachari Ke Karya Kalapon Ko Sandeh Ki Drisht Se Dekha Jata Hai Aur Aisa Spasht Hai Ki Useney Apna Karya Nishpakchh Roop Se Nahin Kiya Balki Apne Karya Se Vimukh Hokar Jaan Bhoojh Kar Sakchhya Pesh Nahin Kiya Aise Karmachari Ki Jitni Bhi Bhartasna Ki Jawe Prayah Thodi Hai.”

8. In the end I may observe that so far any matter between the department and the official inter se is concerned, concerning any departmental inquiry or action I do not make any observation in that connection.

9. Applications allowed.