S. I. JAFRI, J. ( 1 ) THIS is a glaring example of the atrocities committed on Abid Hussain Rizvi by Santosh Kumar Trivedi, Sub-Inspector of Police Station Kotwali. Lakhimpur Kheri. The conduct of the aforesaid Police Sub-Inspector is shocking to the Judicial conscience on account of the torture and third degree methods alleged to be employed by the aforesaid Sub-Inspector. The deceased Abid Hussain had succumbed to the Anti-mortem injuries at Medical College Lucknow. The post mortem report disclosed extensive external injuries all over his body including vital parts, namely spinal and liver regions, anus and bladder, severe congestion of brain and membrances laceration of liver, inflammation of peritoneum, contused condition of bladder with red colour urine dribling out from urethra, presence of about 2 litres of blood in peritoneal cavity, and beeding from nostrils and mount. All these injuries clearly indicated that the deceased was mercilessly thrashed and inhumane treatment was given to him with the intention of causing death of the deceased. The abrasion found around the anus of the deceased Abid indicates that some hard object like rod was tried to be inserted into the anus of the deceased. ( 2 ) IT is alleged by the complainant Sadiq Hussain Rizvi that his son Abid Hussain Rizvi who was aged about 30 years, was arrested by Sub Inspector Santosh Kumar Trivedi on 11th May. 1985 from near his house whereupon, he sent a telegram to the police concerned the same day. It was further alleged that next morning, he found his son Abid Hussain Rizvi in an unconscious state in the District Hospital, Lakhimpur Kheri at 7. 40 a. m. and there were numerous visible injuries on his person. Sadiq Hussain Rizvi then, lodged a report on 12. 5. 85 at the Police Station Kotwali, alleging that his son was arrested by the Sub Inspector Santosh Kumar Trivedi while he was passing through his Mohalla Sakata Devi. It was mentioned by him that Santosh Kumar Trivedi Sub Inspector took his son to Sakata Devi Police out post all the way beating him and he was further beaten there mercilessly and thereafter he was kept inside the Police Station Kotwali through-out the night where he was again given beating by the police. It was mentioned by him that Santosh Kumar Trivedi Sub Inspector took his son to Sakata Devi Police out post all the way beating him and he was further beaten there mercilessly and thereafter he was kept inside the Police Station Kotwali through-out the night where he was again given beating by the police. It was also alleged in the report that the policemen had got admitted Abid in the District Hospital Lakhimpur Kheri in an unconscious and critical state where he had been struggling between life and death. ( 3 ) ON the aforesaid report of the complainant, a case under section 323 Indian Penal Code was registered against Santosh Kumar Trivedi Sub Inspector of Police at P. S. Kotwali at crime No. 205 of 1985. However no action was taken against Santosh, Kumar Trivedi. ( 4 ) AS the condition of Abid Hussain Rizvi was critical and was gradually sinking, he was shifted to Lucknow Medical College from District Hospital Lakhimpur Kheri where he succumbed to his injuries on 14th May 1985. On the death of the deceased, post mortem examination was conducted by the Medical Officer in the Hospital. It may, however, be noted that Abid deceased was admitted in the District Hospital Lakhimpur Kheri in an unconscious state and he remained in unconscious state till his death at the Medical College Lucknow, On the death of Abid Hussain Rizvi, the aforesaid case under 5. 323 Indian Penal Code was converted to one under section 304 Indian Penal Code on 19. 5. 1985 at P. S. Kotwali Lakhimpur Kheri. Even after the conversion of the case under section 304 Indian Penal Code, Santosh Kumar Trivedi was not arrested by the local Police. ( 5 ) THE accused Santosh Kumar Trivedi on the other hand lodged a report at 8. 30 p. m. on 11. 5. 1985 at the Police Station Kotwali alleging that he had arrested Abid at about 7. 30 p. m. the same day on getting the information that the accused Abid was standing at the Station Gate with an unlicenced arm. He sighted the accused with a bag in high end and on seeing the Police party the accused tried to escape but he was chased, encircled and ultimately over-powered by him near Sudama Doodh Bhandar after inflicting some injuries on his person. He sighted the accused with a bag in high end and on seeing the Police party the accused tried to escape but he was chased, encircled and ultimately over-powered by him near Sudama Doodh Bhandar after inflicting some injuries on his person. It was also alleged by the said Sub Inspector that before Abid was over-powered he had fired his pistol towards the police party and after his arrest, a country made pistol with two live cartridges and one misfired live cartridge were recovered from his possession. However, the police party did not received any injury and one empty fired cartridge was recovered from the possession of Abid after his arrest by the police. ( 6 ) ON the report of the Sub Inspector, a case under section 307 Indian Penal Code and S. 25 Arms Act at crime No. 186 of 1985 were registered at the Police Station Kotwali and Abid Hussain Rizvi was put inside the lock up of the Police Station Kotwali at 8. 30 p m. vide General Diary No. 38 dated 11. 5. 1985. How ever, in the General Diary entry, there was no mention that Abid Hussain had fired towards the Police Party. ( 7 ) THE investigation of the case against Santosh Kumar Trivedi under section 304 Indian Penal Code was taken over from the local police and it was entrusted to the C. I. D. Bareilly circle. ( 8 ) SANTOSH Kumar Trivedi, Sub Inspector presented a surrender application in the court or C. J. M. Lakhimpur Kheri on 10. 12. 1985 with a prayer for bail. The learned Magistrate called for a report from the Police Station Kotwali and fixed 17. 12. 1985 for orders. On 17. 12. 1985 when the case was taken up by the Magistrate, the counsel for the complainant appeared before him to oppose the bail application but the learned Magistrate did not pass any order on the said application and called for a report from the C. I. D. Bareilly circle and adjourned the case for orders to 24. 12. 1985. However, in the meantime on 18. 12. 1985, Santosh Kumar Trivedi appeared before the aforesaid Magistrate and prayed that he be released on bail. He also filed an undated medical certificate issued by Dr. Rakesh Srivastava, M. B. B. S. who appeared to be a Private Medical practitioner of Lakhimpur. 12. 1985. However, in the meantime on 18. 12. 1985, Santosh Kumar Trivedi appeared before the aforesaid Magistrate and prayed that he be released on bail. He also filed an undated medical certificate issued by Dr. Rakesh Srivastava, M. B. B. S. who appeared to be a Private Medical practitioner of Lakhimpur. The copy of the said certificate annexed to the application is reproduced below. This is to certify that Mr. Santosh Kumar Trivedi aged about 32 years son of Late Sri Ram Swarup Trivedi, whose Signature attested below, is under my treatment as a case of Hypathemic chest pain (V. C.) since 15. 12. 1985. He has been advised rest for two weeks (with effect from 15th December 1985 ). It transpires from the contents of the certificate that it was issued by the aforesaid Doctor on 15. 12. 1985, since the doctor had advised rest for two weeks with effect from 15. 12. 1985. ( 9 ) THE learned C. J. M. without waiting for the C. I. D. report and affording any Opportunity to the learned counsel for the complainant and the Investigating officers C. I. D. Bareilly Range, heard the applicant, bail application on merit as well and granted bail to Santosh Kumar Trivedi on his furnishing two sureties of Rs. 4000/- each to his satisfaction though he had fixed 24. 12. 1985 for disposal of the application. The learned Magistrate also discussed the merits of the case in his order granting bail to S. K. Trivedi. The complainant Sadiq Hussain Rizvi has filed this application praying for cancellation of order dated 18. 12. 1985 passed by Sri B. N. S. Tripathi C. J. M. Lakhimpur Kheri, granting bail to Sub Inspector Santosh Kumar Trivedi. ( 10 ) I have heard the learned counsel for Santosh Kumar Trivedi at a great length and I am of the view that the order of the learned Chief Judicial Magistrate granting bail to Santosh Kumar Trivedi deserves to be set aside as it was beyond his jurisdiction. ( 11 ) THE offence under section 304 I. P. C. his exclusively triable by the court of Sessions and this court has repeatedly emphasized in various ruling that the Magistrate should not grant bail to the accused when the case is triable exclusively by the Court of Sessions. ( 11 ) THE offence under section 304 I. P. C. his exclusively triable by the court of Sessions and this court has repeatedly emphasized in various ruling that the Magistrate should not grant bail to the accused when the case is triable exclusively by the Court of Sessions. In the present case, looking to the nature of the injuries on the person of the deceased Abid Hussain Rizvi, the offence may come within the ambit of section 302 I. P. C. It appears that the Magistrate without realising the nature and gravity of the offence, had granted bail to the applicant in utter disregard of judicial principles. It may further be noted that the alleged story of firing by the deceased Abid also appears to be doubtful because the three 12 bore cartridges which were allegedly recovered from the possession of the accused by Sub Inspector Santosh Kumar were live and not fired empty cartridge. Moreover, the medical certificate also takes confidence as no date was given by the Doctor regarding the condition of Santosh Kumar Trivedi. It appears that Santosh Kumar Trivedi had obtained the certificate from the aforesaid doctor in order to get his bail from the Court of C. J. M. Lakhimpur Kheri. ( 12 ) IT would not be out of place to note here that Sri B. N. S. Tripaihi has acted in the most careless and collusive manner while, granting bail to Sub Inspector Santosh Kumar Trivedi. The Judicial Magistrate should always uphold the high traditions of independent judiciary and not led away by extraneous consideration. ( 13 ) I have considered all the facts and circumstances of the case and I set aside the order, dated 18. 12. 1985 passed by B. N. S. Tripathi C. J. M. Lakhimpur Kheri, granting bail to Santosh Kumar Trivedi. I further direct the C. J. M. Lakhimpur Kheri to issue non-bailable warrants for the arrest of Sub Inspector Santosh Kumar Trivedi forthwith to the Investigation Officer of the case, C. I. D. Bareilly Circle. ( 14 ) IT is open to Santosh Kumar Trivedi Sub Inspector to file his bail application before the Sessions Judge Lakhimpur Kheri after he surrenders before the C. J. M. Lakhimpur Kheri or he is arrested by the police on the basis of the non-bailable warrant issued by the C. J. M. Lakhimpur Kheri. ( 14 ) IT is open to Santosh Kumar Trivedi Sub Inspector to file his bail application before the Sessions Judge Lakhimpur Kheri after he surrenders before the C. J. M. Lakhimpur Kheri or he is arrested by the police on the basis of the non-bailable warrant issued by the C. J. M. Lakhimpur Kheri. However, I make it clear that the Sessions Judge shall dispose of the bail application, if any, filed by Santosh Kumar Trivedi on merits without being prejudiced that I have set aside the order passed by the C. J. M. Lakhimpur Kheri, granting bail to Santosh Kumar Trivedi. Office is directed to send a copy of this order to the C. ]. M. , Lakhimpur Kheri within three days from today for immediate compliance. The learned counsel for the complainant shall be given a certified copy of the order on payment of usual -charges within three days from today. Office is further directed to send a copy of this order within three days from today to Sri D. S. Bhatnagar, Director General of Police, D. P. Lucknow for perusal. .