# Imtiyaz Ahmad v. State of U.P. and another

- **Citation:** (2001) 2 ILRA 15
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1998-08-18
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/imtiyaz-ahmad-v-state-of-u-p-and-another-39838
- **Pages:** 4

## Text

2All] Imtiyaz Ahmad V. State of U.P. and another

of Reader and the scale of pay of that post
through her representation dated 24th
January, 1989.

13. In the opinion of the Court,
denial
of
the
benefit
of
personal
promotion to the post of Reader and its
pay-scale to the petitioner on the ground
of withdrawal of the Scheme is wholly
arbitrary
and
violative
of
the
constitutional
guarantee
of
equal
treatment envisaged in Articles 14 and 16
of the Constitution of India in as much as
the petitioner had already matured her
right to the grant of personal promotion to
the post of Reader, and to the pay-scale of
the post of Reader and had also demanded
from the respondents for enforcement of
the said right much before the issuance of
the
Government
Order
dated
6th
September, 1990 withdrawing the scheme
of personal promotion to the post of
Reader and to the pay-scale attached
thereto. Moreover, the Governor Order
dated 6th September, 1990 can not be, by
any stretch of imagination, held to operate
retrospectively depriving the petitioner of
the right already accrued to her.

14. It is also relevant to notice that
several
other
incumbents,
similarly
situated as the petitioner was, were
granted the benefit of personal promotion
to the post and pay-scale of Reader as is
evident
from
the
uncontroverted
averments made in paragraph 9 of the
supplementary affidavit of the petitioner
filed on 18th August, 1998, and the
petitioner was singularly left out. If such a
situation is allowed to be countenanced it
will surely result in perpetuation of the
vice
of
discrimination forbidden by
Articles 14 & 16 of the Constitution of
India.

15. On the facts and circumstances,
noticed herein before, it is absolutely
clear that the petitioner was and is entitled
to the grant of personal promotion to the
post of Reader and to the scale of pay of
the post of Reader in pursuance of the
Government Orders dated 24th June, 1986
and 28th October, 1986, and her claim
therefore is hereby upheld. The direction
of Court contained in its interim order
dated 1st August, 1991 for the grant of
personal promotion to the post of Reader
and scale of pay attached thereto to the
petitioner is made absolute.

16. Subject to what has been said
above, the petition stands disposed of
finally. There is no order as to costs.
Petition Disposed of.

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16 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
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By the Court

1. Heard learned counsel for the
applicant Sri B.K. Tripathi and learned
counsel for the opposite party Sri I.K.
Chaturvedi.

2. The contention raised before this
Court is that no prosecution under Section
211 I.P.C. can be launched by the
complainant after the application made by
the applicant under Section 156 (3) Cr.
P.C. for sending the same to the police for
investigation was rejected by the learned
Addl.
Chief
Judicial
Magistrate,
Azamgarh, on the basis of an enquiry
report submitted by the police, as directed
by him. The complainant was a named
accused in that application.

3. In the present case it appears that
the application under Section 156 (3) was
rejected first and the prosecution under
Section
211
I.P.C.
was
launched
thereafter by the accused who filed a
complaint.

4. Learned counsel for the applicant
claims that a prosecution under Section
211 I.P.C. on the basis of any inquiry
report submitted by the police later on is
barred by the provisions of Section 195
(1)(b)(ii)
Cr.
P.C.
The
contention
apparently has force. There was no
regular investigation conducted by the
police in that application. The report was
submitted by police on the basis of a
preliminary enquiry held on the direction
of the learned Addl. Chief Judicial
Magistrate. On the basis of that tentative
enquiry it was found by the police that the
application under Section 156 (3) Cr. P.C.
filed by the applicant, was based on
incorrect facts. The learned Addl. Chief
Judicial Magistrate acted upon that report
and finally rejected this application. In the
circumstances,
as contended by the
learned counsel for the applicant, the
provision of Section 195 (1)(b) Cr. P.C.
shall be applicable to the facts of the case
and the bar will apply against the
applicant's prosecution. This report was
submitted by police in an application
which was sent to it by the court. There
exist, therefore, a proceeding before a
court of law and such report clearly is a
part and parcel of this proceeding. No
private person, therefore, has any right to
initiate any proceeding on this basis by
filing any complaint. Only court where
such a proceeding was pending or was
decided can prosecute an accused after
adhering to due process of law as
enshrined in Section 340 Cr. P.C.

5. Learned counsel for the opposite
party has cited a decision of the apex
court reported in 1967 Cr. L.J. 528 (M.L.
Sethi V. R.P. Kapur and another). At
2All] Imtiyaz Ahmad V. State of U.P. and another

the very outset it must be pointed out that
the facts of that case were absolutely
divergent to the facts of the present case.
According to the case cited by the learned
counsel for the opposite party, an F.I.R.
was lodged against R.P. Kapur charging
him
with
commission
of
certain
cognisable offence and during pendency
of investigation R.P. Kapur filed a
complaint before a Judicial Magistrate
against M.L. Sethi for commission of an
offence under Section 211 I.P.C. On his
complaint the Magistrate took cognisance.
The evidence clearly shows that on the
date of cognisance, no judicial order was
made by any court in respect of written
report lodged against R.P. Kapur, though
subsequent to this cognisance R.P. Kapur
was arrested and chargesheeted by the
police. The apex court had held that the
question about legality of cognisance is to
be judged in relation to the date on which
cognisance was actually taken and as on
that date, there was no proceeding
pending in any court in which or in
relation to which offence under Section
211 I.P.C. was alleged to have been
committed and, therefore, the Magistrate
was not barred from taking cognisance of
the offence on such a complaint by the
provisions of Section 195 (1)(b) Cr. P.C.

6. The facts of the present case
clearly revealed that a private complaint
in the present case under Section 211
I.P.C. against the applicant was filed after
the court had terminated the proceeding,
i.e. the application for sending the same to
the police for investigation under Section
156 (3) Cr. P.C. finally came to rejected.
Therefore, this is a case wherein the result
of the enquiry was subject matter of a
proceeding, which will be covered fully
by the term in relation to which offence
under Section 211 I.P.C. was alleged to
have been committed. The present offence
definitely is related to the proceeding
decided by the learned Magistrate. The
cornerstone in launching the proceeding
under Section 211 I.P.C. was the date of
submission of the inquiry report by the
police. The prosecution of the applicant
under Section 211 I.P.C. shall be barred
by the provisions of Section 195 (1)(b)
Cr. P.C. It can be said with certainty that
the submission of the report was in
relation to a proceeding pending in the
court of Addl. Chief Judicial Magistrate.
Whether the application under Section
156(3) Cr. P.C. was to be sent for
investigation was the issue to be decided.
Before making that decision the learned
Magistrate decided to obtain an enquiry
report from the police. It shall not be out
of place to mention that this is simply an
enquiry and not an investigation as
contemplated under the Code. Some
evidence might or might not have been
collected by the police to establish that
the report was false, but this report was
undoubtedly submitted to court in relation
to that application and the application
definitely gave rise to a miscellaneous
proceeding before the Judicial Magistrate.
In these circumstances, the bar of Section
195(1)(b) Cr. P.C. will undoubtedly be
effectively attracted against any such
prosecution after the dismissal of that
application because the report submitted
by the police was in relation to that
proceeding. In these circumstances, the
judgment cited above by the learned
counsel for the opposite party holds no
water in the facts of the present case.

7.

The
order
rejecting
the
application under Section 156 (3) Cr. P.C.
was passed by the learned Additional
Chief Judicial Magistrate, Azamgarh, on
27.3.1997. The application giving rise to
18 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
the present proceeding under Section 211
I.P.C. was filed two days after that order,
i.e. on 29.3.1997. The police which
submitted a report against this applicant
did not choose to prosecute him or even
recommend
for
his
prosecution
for
making an application on fabricated and
false charges. It is vested with such a
right. The court too was competent to
initiate such an action suo motu. The
complainant himself could also have
applied to the Magistrate for initiation of
such an action. In the absence of any of
these facts the opposite party cannot be
allowed to prosecute the applicant on his
own under Section 211 I.P.C. It shall
otherwise be an abuse of process of the
court.

8. In view of above, the present
application
is
allowed
and
the
proceedings pending in the court of
Additional Chief Judicial Magistrate I,
Azamgarh, in complaint case No. 386 of
1997
(Mohd.
Hammad
V.
Imityaz
Ahmad) against present applicant are
hereby quashed.
Application Allowed.

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By the Court

1.

This
is
tenant's
revision
application under section 25 of the
Provincial Small Causes Courts' Act
arising out of S.C.C. suit no. 17 of 1989
instituted by the plaintiff respondent
Ramshwar Dayal Gupta seeking the
eviction of the defendant-revisionist from
a portion of premises no. 88 Sadar Bazar
Road, Cantt. Mathura and for recovery of
arrears of rent and damages. A brief
backdrop to the short point in issue -
whether the provisions of U.P. Urban
Buildings (Regulation of Letting, Rent
and Eviction) Act, 1972 (Act NO. XIII of
1972) (Hereinafter referred to as ' the Act
No. XIII of 1972') are applicable to the
rented accommodation or not - is that the
defendant-revisionist was inducted as
tenant in the disputed portion of the
house, aforesaid, comprising three rooms
and a shed in the southern portion for
running a school at the rate of Rs.800 per
month w.e.f. 01.05.1985. An agreement
dated 10.04.1984 was executed between