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