# Allahabad and another v. Shitla

- **Citation:** (2002) 3 ILRA 702
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002
- **Case number:** Crl. Misc. Writ Petition No. 3249 of 2002
- **Bench:** M.C. Jain, Y.R. Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/allahabad-and-another-v-shitla-39982
- **Pages:** 6

## Headnote

Constitution of India- Article 226- The
normal rule is not to interfere with the
investigation and criminal proceedings,
except when the complaint or the F.I.R.
broadly read, does not disclose any
offence and can be termed as abuse of
process of law- there are clear allegation
of two shots having been fired by the
petitioner on him- The F.I.R. relates the
incident in requisite details with the
names of the witnesses being also given
there. The matter requires probing by
investigation and the incident cannot be
taken to be unbelievable and imaginary
at this stage simply because it is a case
of 'no injury'. (Held in para 17).

The
FIR
is
question
discloses
the
commission of cognizable offences and
that at this stage no mala fides can be
held to be involved in the lodging of the
said FIR, the petitioner is not entitled for
any relief. We do not locate any merit in
this
writ
petition
for
the
detailed
discussion
made
in
the
proceeding
paragraphs.
Case Law Referred:
1992 SCC (Cri) 426
http://www.allahabadhighcourt.nic.in
3 All] Mohd. Ashraf V. Sushri Mayawati, C.M., U.P. and others
703
2000 SCC (Cri) 70
1996 SCC (Cri) 150
1997 Cr. L.J. (Cri) 63
(1981) 1 SCC 608
(2000) 8 SCC 437

## Text

http://www.allahabadhighcourt.nic.in
702 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
7. The petitioner has relied upon a
decision of the Division Bench of this
Court
in
Adhishasi
Abhiyanta
Electricity Rihand and Hydel Civil
Division UP State Electricity Board
Allahabad and another vs. Shitla
Prasad and another, 1194 AWC-468 in
which it has been held that finality
attaches to the date of birth as recorded in
the service book and the same cannot be
disturbed on a subsequent plea by the
employee that it has been wrongly
recorded. The date of birth recorded in the
service book of an employee is final and
shall be taken to be his correct date of
birth. I am of the firm opinion that the
date of birth of an employee recorded in
the High School Certificate before his
entry in service is to be taken as authentic
date of birth.

8. In view of the aforesaid facts I
hold that the date of birth of the petitioner
is 1 October, 1934 and he is entitled to the
post retirement benefits which can not be
withheld by the respondents on the basis
of the ground taken in the impugned
notice.

9. In view of the above, the writ
petition succeeds and is allowed. The
respondents are directed to pay all the
retirement benefits to the petitioner on the
basis of his date of birth recorded as
1.10.34 along with 12% interest within a
period of three months from the date of
production of a certified copy of this
order.

No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD SEP. 18, 2002

BEFORE
THE HON'BLE M.C. JAIN, J.
THE HON'BLE Y.R. TRIPATHI, J.

Crl. Misc. Writ Petition No. 3249 of 2002

Mohd. Ashraf

...Petitioner
Versus
Sushri Mayawati, Chief Minister, U.P.,
Lucknow and others
 ...Respondents

Counsel for the Petitioner:
Sri Khan Saulat Hanif
Sri S.M.A. Kazmi
Sri Ravinder Sharma

Counsel for the Respondents:
A.G.A.

Constitution of India- Article 226- The
normal rule is not to interfere with the
investigation and criminal proceedings,
except when the complaint or the F.I.R.
broadly read, does not disclose any
offence and can be termed as abuse of
process of law- there are clear allegation
of two shots having been fired by the
petitioner on him- The F.I.R. relates the
incident in requisite details with the
names of the witnesses being also given
there. The matter requires probing by
investigation and the incident cannot be
taken to be unbelievable and imaginary
at this stage simply because it is a case
of 'no injury'. (Held in para 17).

The
FIR
is
question
discloses
the
commission of cognizable offences and
that at this stage no mala fides can be
held to be involved in the lodging of the
said FIR, the petitioner is not entitled for
any relief. We do not locate any merit in
this
writ
petition
for
the
detailed
discussion
made
in
the
proceeding
paragraphs.
Case Law Referred:
1992 SCC (Cri) 426
http://www.allahabadhighcourt.nic.in
3 All] Mohd. Ashraf V. Sushri Mayawati, C.M., U.P. and others
703
2000 SCC (Cri) 70
1996 SCC (Cri) 150
1997 Cr. L.J. (Cri) 63
(1981) 1 SCC 608
(2000) 8 SCC 437

(Delivered by Hon'ble M.C. Jain, J.)

1. Against the petitioner, respondent
no. 5 Mohd. Ashraf son of Ataullah has
lodged an F.I.R. on 22.6.2002 at 2.15
P.M. at P.S. Kareli, district Allahabad
which has resulted in registering of a case
against him and others under sections
147,148,149,307,504,506 and 387 I.P.C.,
Annexure 1 to the writ petition. The
petitioner has filed this petition claiming
the following reliefs:

"i) to issue a writ, order or direction in
the nature of Certiorari quashing the first
information report dated 22.6.2002 in
Case Crime No. 156 of 2002, under
Section 147, 148, 149, 307, 504,506,387,
I.P.C., Police Station Kareilly, District
Allahabad contained in Annexure 1 to the
writ petition.

ii)
to issue a writ, order or direction in
the nature of mandamus commanding the
opposite parties directing them not to
arrest the petitioner in Case Crime No.
156
of
2002
under
Section
147,148,149,307,504,506,387,
I.P.C.
Police Station Kareilly, Allahabad.

iii) to issue a writ, order or direction in
the nature of mandamus commanding the
opposite parties directing them to entrust
the investigation of Case Crime No. 156
of 2002, Under Section 147,148,149,
307,504,506, 387 I.P.C., Police Station
Kareilly, Allahabad, to CBI or any other
independent investigating agency.

iv) to issue any other writ, order or
direction, which this Hon'ble Court may
deem fit and proper under the facts and
circumstances of the case, to which the
petitioner may be found entitled in law."

2. The allegations in the F.I.R. are
that on 22.6.2002 at about 12.30 P.M., the
petitioner opened two shots on him
(respondent no. 5) from his pistol. By
providence, he escaped unhurt as he ran
shouting towards Gaush Nagar. The F.I.R.
makes reference to some earlier incident
of July last year that M.L.A. Ateeq
Ahmad had got him attacked in respect of
which he had lodged the F.I.R. at P.S.
Dhoomanganj, district Allahabad. The
said M.L.A. had commanded him not to
tender evidence in that case, but he had
not succumbed to that pressure. At the
time of present incident, he was allegedly
present at his plot of Beniganj, '60' ft.
Road with Kalloo when the petitioner
with his father, Naseem son of Kallan,
Sharif, Puttan Baba and Ali Ahmad @
Phutter came to him and again pressurized
to take back his case as otherwise he
would be done away with. He retorted
back that come what may, he would not
take back his case. Then at the exhortation
of his father and associates, the petitioner
opened two shots on him.

3. We have heard Sri S.M.A. Kazmi,
learned counsel for the petitioner in
sufficient details and learned A.G.A. in
opposition. It is urged by the learned
counsel for the petitioner that it is an
unusual co-incidence that in the incident
of 22.6.2002 forming the subject matter of
the F.I.R. in question, respondent no. 5
escaped unhurt and it was so even in the
earlier alleged incident of July last year as
is clear from the reading of the F.I.R.
itself. It is reasoned that it is a clear
http://www.allahabadhighcourt.nic.in
704 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
pointer that an imaginary incident has
been coined by respondent no. 5 to roap
in the petitioner. According to the learned
counsel for the petitioner, respondent no.
5 is repeatedly filing false F.I.Rs against
the petitioner and his other family
members, because the petitioner happens
to be the brother of M.L.A. Ateeq Ahmad.

4. It may be pointed out that in this
writ petition, the Court is concerned with
the F.I.R. of Crime no. 156 of 2002
relating to incident of 22.6.2002. We are
of the opinion that it is no strange
coincidence that respondent no. 5 escaped
unhurt. There are clear allegation of two
shots having been fired by the petitioner
on him. The F.I.R. relates the incident in
requisite details with the names of the
witnesses being also given there. The
matter requires probing by investigation
and the incident cannot be taken to be
unbelievable and imaginary at this stage
simply because it is a case of 'no injury'.

5. It has vehemently been argued for
the petitioner that he happens to be the
brother of M.L.A. Ateeq Ahmad who is
politically opposed to the present Chief
Minister
Sushri Mayawati and that
respondent no.5 is being politically
utilized by her to slap false cases against
M.L.A. Ateek Ahmad and his other
family members to settle the scores of
political vendetta and the present F.I.R. is
a part of that scheme and chain.

6. Learned counsel for the petitioner
has invited our attention to Annexure 8 to
the writ petition which is said to be the
copy of proceedings of the Legislative
Assembly dated 17th May 2002. It is
sought to be emphasized with its help that
when the petitioner was pointing out the
ideological framework of the present
Chief Minister, she threatened that she
would ensure that tears would come to his
eyes.

7. So far as the alleged statement or
threat of the present Chief Minister on the
floor of the Legislative Assembly on
17.5.2002 is concerned, suffice it to say
that the same cannot prima facie and
rationally be interpreted as her mala fides
against the petitioner's brother for getting
him and his family members getting
implicated in false criminal cases.

8. It is also pertinent to state that
difference of ideology and policies are not
unusual amongst the persons connected
and associated with politics. But the same
does not permit the fanciful inference that
one or the other would go to the level of
implicating his adversary in false criminal
cases through commoners having no
moorings. To our mind, it is too far
fetched to hold at this stage that the
petitioner has been falsely implicated in
this case by respondent no. 5 at the
instance of the present Chief Minister of
the State, Sushri Mayawati because he
happens to be the brother of M.L.A.
Ateeq Ahmad who is politically opposed
to her. It may be stated that the case
requires
investigation
as
per
the
provisions of Criminal Procedure Code as
the
F.I.R.
discloses
commission
of
cognizable offence including that of
attempt of murder under section 307
I.P.C.

9. Regarding the allegation of mala
fides in the lodging of present F.I.R. by
respondent no. 5 as the tool of the present
Chief Minister of the State, learned
counsel for the petitioner has invited our
attention to the case of State of Haryana
and others Vs. Bhajan Lal and others
http://www.allahabadhighcourt.nic.in
3 All] Mohd. Ashraf V. Sushri Mayawati, C.M., U.P. and others
705
1992 SCC (Cri) 426 in which norms have
been laid down where extraordinary
power
under
Article
226
of
the
Constitution of India or the inherent
powers under Section 482 Cr.P.C. can be
exercised by the Court either to prevent
abuse of the process of any court or
otherwise to secure the ends of justice.
Emphasis has been laid from the side of
learned counsel for the petitioner on the
following two norms categorized in the
said ruling at serial nos. (5) and (7):

"(5) Where the allegations made in the
F.I.R. or complaint are so absurd and
inherently improbable on the basis of
which no prudent person can ever reach a
just conclusion that there is sufficient
ground
for
proceeding
against
the
accused.

(7) Where a criminal proceeding is
manifestly attended with mala fide and/or
where the proceeding is maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and
with a view to spite him due to private
and personal grudge."

10. Considering the allegations
made against the petitioner in the present
F.I.R., we are of the view that it cannot be
said without stretching imagination to an
unlimited extent that they (the allegations)
are so absurd and inherently improbable
on the basis of which no prudent person
can even reach a conclusion that there
was sufficient ground for proceeding
against the petitioner. It also cannot be
held at this stage that the F.I.R. in
question has been lodged with mala fides.
It does disclose commission of cognizable
offences and no interference, in our
considered opinion, is called for by this
court
in
exercise
of
extraordinary
prerogative writ jurisdiction under Article
226 of the Constitution of India to quash
the F.I.R. in question. The law must take
its own course. Quashing of the F.I.R.
cannot be sought on this premise either
that the allegations made are incorrect or
false according to the petitioner. The
extraordinary jurisdiction under Article
226 of the Constitution of India cannot be
exercised for this purpose. We need not
labour much on the point that the High
Court does not ordinarily enter into the
factual controversy in writ jurisdiction.
When the F.I.R. discloses commission of
cognizable offence (s), as is the case here,
there is no ground for interference by the
High Court to prevent the abuse of the
process of any Court or otherwise to
secure the ends of justice. The case has to
go through the ordinary system of law.

11. The Supreme Court has held in
the case of Manohar M. Galani V. Ashok
N. Advani, 2000 SCC (Cri) 70 that the
High Court is not justified in quashing the
F.I.R. by an elaborate discussion on merit
of the matter.

12. The normal rule is not to
interfere with the investigation and
criminal proceedings, except when the
complaint or the F.I.R. broadly read, does
not disclose any offence and can be
termed as abuse of process of law. If
prima facie an offence is disclosed in the
F.I.R., the High Court would decline to
interfere with the statutory functions of
the investigating agency and to quash the
criminal proceedings.

13. As to the allegations of mala
fides, we have indicated above that there
is no justification whatsoever at this stage
to accept the same. Moreover, in the case
of State of Maharashtra Vs. Ishwar
http://www.allahabadhighcourt.nic.in
706 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
Piraji Kalpatri and others 1996 SCC
(Cri) 150 the Supreme Court has held that
mala fides or animus of a complainant or
prosecution is not relevant at the initial
stage for quashing criminal proceedings.
If on the basis of the allegations in the
complaint a prima facie case is made out,
the High Court has no jurisdiction to
quash the proceedings. It is not justified in
judging the probability, reliability or
genuineness of the allegations made. If
the complaint which is made is correct
and the offence had been committed,
which will have to be established in a
court of law, it is of no consequence that
the complaint was by a person who was
inimical or that he was guilty of mala
fides. If the ingredients which establish
the commission of the offence exist, then
the
prosecution
cannot
fail
merely
because there was an animus of the
complainant or prosecution against the
accused. The allegations of mala fides
may be relevant while judging the
correctness of the allegations or while
examining the evidence. But the mere fact
that the complainant is guilty of mala
fides would be no ground for quashing the
prosecution.

14. So far as the question of transfer
of investigation to an independent agency
is concerned, we would like to observe
that normally the investigation should be
done by the local police. The mere
allegation that the local police would not
investigate the case properly does not
entitle the accused to pray for handing
over the investigation to some other
agency. In the case of CBI Vs. Rajesh
Gandhi 1997 Cr.L.J. (Cri) 63, the
Supreme Court has held that the decision
to investigate or the decision on the
agency which should investigate, does not
attract principles of natural justice. The
accused cannot have a say in who should
investigate the offences he is charged
with.

15. Learned counsel for the
petitioner has then referred to the case of
Francis
Coralie
Mullin
vs.
Administrator, Union Territory of Delhi
and others (1981) 1 SCC 608, wherein it
was observed as under:

"Principle of interpretation which
requires that a constitutional provision
must be construed, not in a narrow and
constricted sense, but in a wide and
liberal manner so as to anticipate and
take account of changing conditions and
purposes
so
that
the
constitutional
provision does not get atrophied or
fossilized but remains flexible enough to
meet the newly emerging problems and
challenges, applies with greater force in
relation to the fundamental rights enacted
by the Constitution. The fundamental
right to life which is the most precious
human right and which forms the ark of
all other rights must, therefore, be
interpreted in a broad and expansive
spirit so as to invest it with significance
and vitality which may endure for years to
come and enhance the dignity of the
individual and the worth of the human
person."

16. Another ruling cited is Dadu
alias Tulsidas vs. State of Maharashtra
(2000) 8 SCC 437. Stress has been laid on
head-note 'H' which is to the following
effect:

"Constitution of India-- Arts. 226
and 32- Judicial Review- Held, is the
heart and soul of the constitutional
scheme-Judiciary
is
the
ultimate
interpreter of the Constitution and has the
http://www.allahabadhighcourt.nic.in
3 All] Satya Prakash Srivastava V. The Director General (Fire Services), and others
707
assigned task of determining the extent
and scope of the powers conferred on
each part of the Government and thus
ensure that no branch transgresses its
Limits."

17. Indeed, the principles of
interpretation of constitution and the
constitutional philosophy enunciated by
the Apex Court of the land through the
above cited rulings do not brook any
dispute. But the point of the matter is that
having
regard
to
the
facts
and
circumstances of the present case that the
F.I.R.
in
question
discloses
the
commission of cognizable offences and
that at this stage no mala fides can be held
to be involved in the lodging of the said
F.I.R., the petitioner is not entitled for any
relief. We do not locate any merit in this
writ petition for the detailed discussion
made in the proceeding paragraphs.

18. We accordingly dismiss this writ
petition.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.9.2002

BEFORE
THE HON'BLE S.K. SEN, C.J.
THE HON'BLE R.K. AGARWAL, J.

Special Appeal No. 1000 of 2002

Satya Prakash Srivastava
...Petitioner
Versus
The Director General (Fire Services), U.P.
and others

 ...Respondents

Counsel for the Petitioner:
Sri O.P. Singh
Sri Anil Kumar Srivastava
Sri Swarn Kumar Srivastva

Counsel for the Respondents:
Sri S.J. Yadav
S.C.

Constitution of India- Article 226- There
is no Rule which provides that one can
not keep beard. Our country is governed
by Rule of Law and matters are to be
decided according to the provisions of
law in that behalf and not on likes or
dislike of an individual Officer howsoever
high position he may be having. (Held in
para 2)

The
representation
made
by
writ
petitioner should have been decided on
the basis of merit and we accordingly set
aside the rejection order dated 9.7.2002
passed by Director General Fire Services
U.P. The Director General shall decide
the matter afresh after hearing the writ
petitioner and pass appropriate orders
recording reasons.

(Delivered by Hon'ble S.K. Sen, C.J.)

1. Sri O.P. Singh learned Senior
Advocate assisted by Sri Anil Kumar
Srivastava Advocate appears for appellant
and Sri S.J. Yadav learned Standing
counsel appears for State Respondents.

2. This Special Appeal is directed
against an order passed by learned single
Judge whereby learned single Judge
dismissed the writ petition. It appears that
the writ petitioner was aggrieved since his
representation against the order of transfer
was rejected only on the ground that the
Director General Fire Services, U.P. took
the view that he was in shabby condition
with long beard and hair which displayed
indiscipline and immaturity. That is not a
ground on which transfer was effected.
There is no Rule which provides that one
can not keep beard. Our country is
governed by Rule of Law and matters are
to be decided according to the provision