S.29 UP Police Act | Same Magistrate Cannot Be Both Witness & Judge In Proceedings Against SHO: Allahabad High Court

Recently, the Allahabad High Court has 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.

Section 29 of the UP Police Act provides penalties for neglect of duties by a police officer mentioned therein including wilful breach or neglect of any provision of law or a lawful order made by competent authority. Penalties for such erring police officer are upto three months' pay, or imprisonment, with or without hard labour, for a period not exceeding three months, or to both.

The Court observed that Regulation 484 and 486 of the UP Police Regulations provide the procedure for conduction inquiry under Section 29 of the UP Police Act. Regulation 484 provides that such complaints can be dealt by the District Magistrate only. In case a Magistrate other than District Magistrate receives the complaint, the same should be reported to the District Magistrate.

The Court observed that Regulation 486 provides 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.”

Reading Section 29 along with the Regulation 484 and 486 of the UP Police Regulations, Justice Shamim Ahmed set aside the order of the Magistrate directing the registration of FIR against SHO Kotwali Mankapur, Gonda under Section 406 IPC with aim of punishing him under Section 29 of UP Police Act.

Case Background

Counsel for petitioner submitted that 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, 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 SHO sought 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.

It was submitted that the Trial Court proceeded to register a case against the SHO and directed him to furnish explanation. Petitioner informed the trial court that he had just taken charge of the post. Subsequently, notice was issued to Superintendent of Police, District Baghpat directing him to produce the then SHO, namely, Sudhir Kumar Singh for evidence in the recovery of truck case.

Since Sudhir Kumar Singh had not reported in District Baghpat, a non-bailable warrant was issued against him, with a direction to petitioner to produce him. Counsel for petitioner submitted that the petitioner was on urgent duty on the day of adducing the evidence when the trial court directed that FIR be registered against him under Section 406 IPC with aim of punishing him under Section 29 of UP Police Act.

Petitioner challenged the said order on grounds that the trail court had exceeded his jurisdiction by registering a case against the SHO without mentioning the provision of law under which he wished to proceed. It was argued that the trial court judge being the complaint could not have tried the case against the SHO. It was pleaded that the case ought to have been sent to the competent authority / District Magistrate, Gonda for action under Section 29 of U.P. Police Act.

Per Contra, the Additional Government Advocate argued that the impugned order was passed after due consideration of the material on record. It was argued that the punishment was valid as the petitioner had failed to comply with the order of the Magistrate.

High Court Verdict

Discussing Section 29 of the UP Police Act read with Regulation 484 and 486 of the UP Police Regulations, the Court held 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.”

Accordingly, the order of the Additional District and Sessions Judge, Court No.3, Gonda was set aside.

Case Title: Raj Kumar Saroj vs. State Of U.P. Thru. Prin. Secy. Home Lucknow And Another 2024 LiveLaw (AB) 70 [MATTERS UNDER ARTICLE 227 No. - 414 of 2024]

Case citation: 2024 LiveLaw (AB) 70

Click Here To Read/Download Order