Hon’ble M.K. Mittal, J.—This writ petition has been filed for quashing the order dated 28.4.2006 passed by Addl. Sessions Judge, Court No. 3, Basti whereby he dismissed the criminal revision No. 142 of 2006 which was filed against the order dated 6.2.2006 passed by Judicial Magistrate in Criminal complaint whereby he had dismissed the complaint under Section 203, Cr.P.C.

2. Heard learned Counsel for the petitioner, learned A.G.A. and perused the material on record.

3. Brief facts of the case are that petitioner filed a criminal complaint under Section 166, IPC against Ram Vilas Yadav Sub Inspector, Omkar Singh constable and D.S.Tomar, Station Officer Incharge Kotwali Basti alleging that on 22.7.2004 in the afternoon Ram Ashish Yadav younger brother of Ram Vilas Yadav came to his house in village Chandidiha which is seven kilometers from Khalilabad and at that time he was not at his house and his wife Smt Bhanmati was there. Ram Ashish Yadav inquired from his wife about him and when she told that he was not at the house he told his wife that he was sent by Sub Inspector Ram Vilas Yadav and he was awaiting for him at P.S. Maghar and the matter could be settled if the payment of Rs. 20,000/- was made. When his wife asked as to about what case he was talking and that he might give in writing. Ram Ashish Yadav gave the details of the case. When he came to his house his wife informed the message of Ram Ashish Yadav. On 23.7.2004 at about 11 a.m. when he was in market along with his grand son Amit Kumar, Ram Vilas Yadav and constable Omkar Prasad Singh arrested them and took them to Khalilabad. Ram Laut son of Chandra Bhan was present with the Sub Inspector at the time of their arrest and he had identified them. There was Magistrate in Khalilabad but they were not produced before him and thus the provisions of Article 22(2) of the Constitution were violated. Arresting Office did not prepare any memo of the arrest and in this manner judgment of Hon’ble Apex Court in the case of D.K. Basu v. State of West Bengal, 1997 ACR 290 was violated. He and his grand son were handcuffed at the instructions of Ram Vilas by constable Omkar Prasad. They were lodged at the police station Kotwali. Ram Vilash Yadav asked him to pay Rs. 20,000/- to settle the case but he did not give any reply. On 24.7.2004 they were taken out of the lock up at 12 in the day and were handcuffed and were taken to the Court of C.J.M. on foot and when they reached in front of the sitting place of Harishchandra Pratap Singh on the Nyaya Marg, they were photographed with handcuffs. On coming to know about the photography D.S. Tomar, Kotwal came there and asked for removal of the handcuffs. By that time they had reached the Court. However when their turn came and when the Magistrate saw them the handcuffs had already been removed. On this ground the complainant contended that the accused persons had violated the law and prayed that they be punished.

3. In support of complaint, complainant examined himself and his grand son and his wife as witnesses under Section 200/202, Cr.P.C. Learned Magistrate after considering the evidence on record came to the conclusion that the accused were witnesses and therefore they could not be relied and that photograph did not show that the accused had handcuffed the complainant and his grand son. He also held that no independent witness was produced and that the record did not show that no memo of arrest was prepared. The complainant and his grand son were alleged to have committed cognizable offence and case was also registered against them and therefore they could be arrested without warrant and under Section 3, Cr.P.C. Magistrate means Judicial Magistrate and there was no Court of Judicial Magistrate in Khalilabad and therefore the complainant and his grand son could not be produced before the Magistrate in Khalilabad and there was no violation in that regard. Consequently, he dismissed the complaint under Section 203, Cr.P.C. Feeling