JUDGMENT :

1. In order to consider rival submissions, it is necessary to place brief facts of the case on record.

2. On 02.12.1999 a police party intercepted three persons in a routine patrolling duty and after exchange of firing two persons were apprehended but one person managed to run away. Said two injured-accused were arrested and three FIRs were lodged being Case Crime No. 228 of 1999, under Section 307 IPC and Case Crime No. 229 of 1999 as well as Case Crime No. 230 of 1999, under Section 25 Arms Act, Police Station Roza, District Shahjahanpur and accused Yaqub alias Gulam Khwaja and Arish were remanded to police custody. They were admitted in hospital and were under treatment and on advice of Doctors one of the accused, Yaqub when on the way to Spinal Surgery Unit of KGMC, Lucknow died on 04.12.1999. Post mortem was conducted wherein five injuries were found on his body.

3. In these circumstances, Saroon wife of deceased, Yaqub filed an application under Section 156(3) Cr.P.C. before Chief Judicial Magistrate, Shahjahanpur against police party, who have arrested deceased after exchange of firing with allegation that it was a death due to custodial torture. Said application was dismissed vide order dated 02.02.2001, however a revision thereof was allowed vide order dated 09.02.2001 and thereafter a FIR was lodged on 23.02.2001 against present applicant and other police personnel under Sections 147, 148, 149, 302 IPC, Police Station Roza, District Shahjahanpur. After investigation a final report was submitted on 24.10.2001. A notice was also issued by Human Right Commission on basis of an application filed by wife of deceased-accused in which a report was submitted that deceased was rightly arrested and he died due to injuries suffered during his arrest despite proper treatment.

4. The above referred final report dated 24.10.2001 was submitted before Trial Court, however, without calling a protest petition vide order dated 03.01.2002 the Court registered a criminal complaint case and issued notice to complainant, i.e., Saroon, wife of deceased and thereafter her statement was recorded under Section 200 Cr.P.C. as well as statements of two witnesses were also recorded under Section 202 Cr.P.C. and consequently by impugned order dated 28.09.2010 passed under Section 204 Cr.P.C., summons were issued against applicant and other persons to face trial under Sections 147, 148, 149, 302 IPC.

5. Under the above factual background and on the basis of rival submissions issues before this Court for consideration are, whether without any protest petition a Magistrate while disapproving a final report can treat it to be a criminal complaint case and further on basis of statements recorded under Sections 200 and 202 Cr.P.C. could pass an order under Section 204 Cr.P.C. to summon accused persons and if answer to above issue is in affirmative, whether in facts and circumstances of present case order impugned passed under Section 204 Cr.P.C. is legally sustainable or not as well as whether applicant being a police personnel is entitled for protection from initiation of a criminal proceeding in question under Section 197 Cr.P.C. being without previous sanction?

6. Sri V.P. Srivastava, learned Senior Advocate assisted by Sri Santosh Kumar Rai, learned counsel for applicant, vehemently urged that deceased-accused alongwith other accused were apprehended on 02.12.1999 after exchange of firing in injured condition and immediately they were produced before Magistrate who granted remand of accused by order dated 02.12.1999 that he had suffered serious injuries and was admitted in hospital and with further direction that accused be sent to custody after discharge from hospital. He was given treatment in hospital for spinal and head injuries and Senior counsel has placed reliance on medical treatment report and that after two days on 04.12.1999 he was referred to other hospital (Spinal Care Unit at KGMC, Lucknow) however he died while going to hos