# Jiya Afzal & Anr v. State of U.P. & Anr

- **Citation:** (2020) 6 ILRA 191
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-04
- **Case number:** Application U/S 482 No. 15022 of 2020
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jiya-afzal-anr-v-state-of-u-p-anr-45781
- **Pages:** 6

## Headnote

A. Criminal Law - Code of Criminal
Procedure,1973-Section
482
-
Indian
Penal Code,1862-Sections 419, 420, 467,
468,471 -challenge to -forged and fictitious
appointment of Anudeshak (teacher) in
Madarsa-complainant found that appointment
was against the law- regarding locus or
competence to make complaint, it is a settled
law
that
court
cannot
decline
to
take
cognizance-offence of forgery, fraud, making
fabricated document and having appointment
fraudulently in public office, requiring no
condition precedent or competence of any
person
to
initiate
criminal
proceedingMoreso,Service
Rules
1984
prohibits
appointment of any relative of any member of
Management Committee-however, father of
Anudeshak resigned in the Committee before
such
appointment
just
to
make
such
appointment legal but the same resignation
was not forwarded to Assistant Registrar,Firms,
Societies and Chits for deleting name from the
list of members of Management Committee of
Madarsa Concerned.(Para 1 to 6)
In the Instant case, the applicants are father
and son.they played fraud to the institution for
192 INDIAN LAW REPORTS ALLAHABAD SERIES
appointment as Anudeshak which was illegal
and against the Rules, 1984.forged and fictitious
resignation and acceptance was shown.
 (Para 3 & 4)

The application is dismissed. (E-6)

List of Cases Cited:-

Vishwa Mitter of M/s Vijay Bharat Cigarette
Stores, Dalhousie Road, Pathan-Kot Vs O.P.
Poddar & ors. (1983) 20 ACC 367

## Text

6 All. Jiya Afzal & Anr. Vs. State of U.P. & Anr.
191
feasible or expedient to record the evidence
on
the
same
date,
and
therefore,
proceedings cannot be stayed.

[3] Aggrieved by this order, Smt.
Mithlesh Kumar(applicant) preferred the
present 482 Cr.P.C. application and this
Court on 19.11.2013 directed to list this
case along with Application U/S 482
No.12176 of 2013 and has stayed the
proceeding of S.T. no.53 of 2012 arising
out of case crime no.300 of 2007 under
sections 147, 148, 149, 302, 307 IPC,
Police
Station-Dibiyapur,
DistrictAuraiya
pending
in
the
court
of
Additional Sessions Judge/Special Judge,
D.A.A. Auraiya.

[4] After hearing the parties, I, in
the earlier part of the judgment have
allowed
in
Application
U/S
482
No.12176 of 2013 while quashing the
summoning order dated 15.02.2013 in
complaint case no.52 of 2011 and thus as
natural corollary, the entire castle goes to
shambles. The entire sessions trial arising
out of complaint case would be in nullity
and the proceeding arising out of case
crime no.300 of 2007 in S.T. No.53 of
2012 under sections 147, 148, 149, 302,
307 IPC pending in the court concerned
shall proceed unabated.

[5]

Under
the
changed
circumstances, when the impugned order
dated 15.02.2013 arising from complaint
case no.52 of 2011 initiated by Smt.
Sunita Tiwari has already been quashed,
as a natural outcome, court concerned is
absolutely free to proceed with sessions
trial arising out of case crime no.300 of
2007 and S.T. No.53 of 2012, State VS.
Mithilesh and others, under sections 147,
148, 149, 302, 307 IPC and conclude the
same as expeditiously as possible.

[6] The present application stands
rejected.
Interim
order
granted
on
19.11.2013 is hereby discharged.
----------

(2020)06ILR A191
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.03.2020

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 No. 15022 of 2020

Jiya Afzal & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Kamal Kumar Singh

Counsel for the Opposite Parties:
A.G.A., Sri D.V. Singh, Sri S.N. Singh

A. Criminal Law - Code of Criminal
Procedure,1973-Section
482
-
Indian
Penal Code,1862-Sections 419, 420, 467,
468,471 -challenge to -forged and fictitious
appointment of Anudeshak (teacher) in
Madarsa-complainant found that appointment
was against the law- regarding locus or
competence to make complaint, it is a settled
law
that
court
cannot
decline
to
take
cognizance-offence of forgery, fraud, making
fabricated document and having appointment
fraudulently in public office, requiring no
condition precedent or competence of any
person
to
initiate
criminal
proceedingMoreso,Service
Rules
1984
prohibits
appointment of any relative of any member of
Management Committee-however, father of
Anudeshak resigned in the Committee before
such
appointment
just
to
make
such
appointment legal but the same resignation
was not forwarded to Assistant Registrar,Firms,
Societies and Chits for deleting name from the
list of members of Management Committee of
Madarsa Concerned.(Para 1 to 6)
In the Instant case, the applicants are father
and son.they played fraud to the institution for
192 INDIAN LAW REPORTS ALLAHABAD SERIES
appointment as Anudeshak which was illegal
and against the Rules, 1984.forged and fictitious
resignation and acceptance was shown.
 (Para 3 & 4)

The application is dismissed. (E-6)

List of Cases Cited:-

Vishwa Mitter of M/s Vijay Bharat Cigarette
Stores, Dalhousie Road, Pathan-Kot Vs O.P.
Poddar & ors. (1983) 20 ACC 367

(Delivered by Hon'ble Ram Krishna
Gautam, J.)

1. This application, under Section 482
Cr.P.C., has been filed by Jiya Afzal and
Akhlaq Ahmad against State of U.P. and
another, with a prayer for setting aside
entire proceeding of Criminal Case No.
3520 of 2011 (State Vs. Akhlaq Ahmad and
others), arising out of Case Crime No. 550
of 2011, under Sections 419, 420, 467, 468,
471 I.P.C., Police Station Kotwali Nagar,
District Mau, pending in the court of Chief
Judicial Magistrate, Mau.

2. Learned counsel for applicants
argued
that
accused-applicants
are
innocent.
They
have
been
falsely
implicated and charge sheeted for offences,
as above. Institution known as Madarsa
Talimul
Qurran
Mohsinpura
(Makkhanwan), Maunath Bhanjan, District
Mau is recognized by Arbi and Farsi
Madarsa Board, U.P., governed under the
recognition and Service Rules, 1987,
approved by State of U.P. (Education
Department of State of U.P.). This
Institution obtained recognition from Arbi
and Farsi Madarsa Board, of which
certificate of recognition to this Institution
dated 16.06.2003 was issued by Registrar
Arbi and Farsi Examination U.P., Lucknow.
Above institution was being regulated by a
society of Committee of Management,
registered under Society Registration Act,
of which applicant no. 2 was member. He
had
submitted
his
resignation
from
membership of the Committee, before
Manager of Committee of Management on
01.05.2008,
which
was
accepted
by
Committee of Management in above
meeting held on 11.05.2008, wherein
agenda
regarding
resignation
and
acceptance of resignation of applicant no. 2
Akhlaq Ahmad, S/o Late Abdul Latif, was
drawn. After acceptance of resignation in
meeting of Committee of Management,
held on 11.05.2008, he was not a member
of Management Committee anymore. State
of U.P. Government, under the scheme of
Sarv Shiksha Abhiyan, issued a circular for
guaranteeing education at primary level to
each children of State, wherein Shiksha
Guarantee Yojna was proclaimed and
directed to be implemented by every
District Basic Education Officer in U.P. A
direction for appointment on the post of
Anudeshak for imparting education to the
children at primary level, on the contractual
basis, was provisioned. This scheme was
operative in Madarsas, recognized and
imparting education till primary level. The
Director of Education of State Programme,
Uttar Pradesh, had issued a circular letter to
each District Basic Education Officer, U.P.
for
ensuring
compliance
of
above
programme, thereby providing guidelines
and appointing Anudeshak at every primary
school as well as Madarsa level, imparting
primary level education to children. Under
said scheme, Committee of Management of
Madarsa
Talimul
Qurran
Mohsinpura
(Makkhanwan), Maunath Bhanjan, District
Mau, invited applications for appointment
on the post of Anudeshak in his Institution
under above Shiksha Guarantee Yojna, for
which applicant no. 1 was eligible.
Manager of Institution as well as its
Committee,
by
way
of
resolution,
6 All. Jiya Afzal & Anr. Vs. State of U.P. & Anr.
193
appointed applicant no. 1 as Anudeshak on
25.05.2008.
This
was
submitted
for
approval by Basic Shiksha Adhikari, Mau
and after its approval, applicant no. 1
imparted teaching as Anudeshak in above
Madarsa. Mohd. Hanif, one native of area,
moved a complaint before Basic Shiksha
Adhikari, Mau making a complaint of
appointment of applicant no. 1 illegally. A
notice
was
issued
to
Management
Committee of Madarsa concerned on
28.07.2010, wherein reply by Madarsa was
submitted mentioning therein that applicant
no. 2 had not been a member of above
Committee of Management on the date of
appointment of applicant no. 1. Moreso,
Anudeshak was not a regular service, either
in Group D or as a Clerk, for which there
was bar in Basic Education Act with Rules
framed therein. Even after it, District Basic
Education
Officer,
Mau
ceased
appointment of applicant no. 1. Again
Shamim Ahmad, who was earlier Manager
of Madarsa concerned and was replaced by
the then Manager Kabir Ahmad, created a
disturbance in the peaceful functioning of
Madarsa and with mala fide motive, moved
an application under Section 156(3) Cr.P.C.
against the applicants as well as Manager
of Institution with other members with
contention of fabrication of documents for
getting job of Anudeshak by applicant. This
application was allowed by Court of Chief
Judicial Magistrate with a direction for
registration of Case Crime No. 550 of 2011,
under Sections 419, 420, 467, 468, 471
I.P.C., Police Station Kotwali Nagar,
District Mau. Investigation of this case
crime number resulted submission of
charge sheet for those offences, whereas no
investigation was there nor any offence was
made out. Merely on the statement of Basic
Shiksha Adhikari Dr. Chandra Pal and
Shamim Ahmad, above charge sheet was
filed and under routine manner, with no
application of judicial mind by Magistrate
concerned, cognizance for offence was
taken, wherein cognizance order dated
05.10.2011
was
passed.
U.P.
Basic
Education Act, 1972 with Service Rules
1984
was
not
applicable
regarding
appointment of Anudeshak in Sarv Shiksha
Abhiyan under Shiksha Guarantee Yojna in
a Madarsa, having recognition from Arbi
and Farsi Madarsa Board. Moreso, at the
time of appointment of applicant no. 1 as
Anudeshak, applicant no. 2 was not
member of society, hence, this allegation
was of no substance. Application was filed
by erstwhile Manager, having no locus.
Hence, this application with above prayer.

3. Learned counsel for opposite party
no. 2 vehemently opposed argument of
learned counsel for applicants by way of
pressing counter affidavit, filed by him, that
as per statement of Dr. Chandra Pal, Basic
Shiksha Adhikari as well as Assistant
Registrar, Firms, Societies and Chits,
Azamgarh, recorded under Section 161
Cr.P.C., opposite party no. 2 was registered
member of Management Committee of
Madarsa concerned. This forged and
fictitious resignation and its acceptance by
Management Committee, having members,
who are accused in this proceeding, were
subsequently manufactured. It was never
communicated
to
Assistant
Registrar,
Firms, Societies and Chits, Azamgarh
Region, Azamgarh, for making any change
in
list
of
member
of
Management
Committee of Madarsa concerned. Rather,
a certificate dated 07.07.2011 was issued
by Assistant Registrar, Firms, Societies and
Chits,
Azamgarh
Region,
Azamgarh,
mentioning name of applicant no. 2 at
serial no. 14 of list of members of
Management
Committee
of
Madarsa
concerned. Basic Shiksha Adhikari, Mau in
his statement has categorically said that it
194 INDIAN LAW REPORTS ALLAHABAD SERIES
was an appointment under fraud and
misconception of fact. Applicant no. 2 was
member of Management Committee and
his son applicant no. 1 was appointed as an
Anudeshak against the Rules, because of
being
close
relative
of
Management
Committee's member. Madarsa was initially
recognized under U.P. Basic Education Act,
1972. Thus, U.P. Basic Education Act, 1972
and Rules made therein of 1984 is fully
applicable
on
Madarsa
in
question.
Registrar, Arbi and Farsi Examination, U.P.
Lucknow had accepted recognition given
under above Act. Hence, it can never be
said that subsequent Rules of 1987 was
only applicable for Madarsa and its
employees. Hence, opposite party no. 2 was
erstwhile
Manager
of
Committee
of
Management
and
he
brought
this
proceeding in motion for the fraud
committed with above Institution, for
which he was fully competent, having
locus. Hence, this application deserves to
be dismissed.

4. Learned A.G.A. has vehemently
opposed
the
application
with
this
contention that prima facie, there was
evidence of complainant, District Basis
Education Officer Dr. Chandra Pal and
Assistant Registrar, Firms, Societies and
Chits,
Azamgarh
with
documentary
evidence, having mention that till 2011, on
the date of issuing certificate by Assistant
Registrar, Firms, Societies and Chits,
Azamgarh Region, Azamgarh, concerned
Madarsa and its Management Committee
was having name of applicant no. 2 at serial
no. 14. Hence, entire contention of
submission of resignation and acceptance
of it was a forged and fictitious proceeding.
There was a provision that no relative of
any member of Management be appointed
in any primary school or Madarsa and in
utter disregard of it, appointment of
Anudeshak was made. This was not
disclosed to Basic Shiksha Adhikari, who
subsequently ceased this appointment and
this order was not challenged before any
higher Court. Hence, the defence taken by
learned counsel for applicants are not to be
seen till cognizance stage and this Court in
exercise of inherent jurisdiction, under
Section 482 Cr.P.C., is not expected to
embark upon factual matrix. Hence, this
application be dismissed.

5. Having heard learned counsel for
both sides and gone through material
placed on record, it is undisputed fact that
Madarsa
Talimul
Qurran
Mohsinpura
(Makkhanwan), Maunath Bhanjan, District
Mau was a registered Madarsa, having its
recognition under Code of Education at
Article 65. As per recognition and Service
Rules, 1987, recognition from Arbi and
Farsi Madarsa Board, U.P., to this Madarsa
was there. It was being managed by
Committee of Management, registered
under Society Registration Act with Rules
made therein. Applicant no. 2 was the
member of Management and it was shown
at serial no. 14 of list of members of
Committee of Management in the office of
Registrar, Firms, Societies and Chits,
Azamgarh Region, Azamgarh, wherein
members from 01.05.2008 to date of
issuance of certificate in 2011 were entered
and applicant no. 2 was with mention in it.
Applicant no. 1 is son of applicant no. 2.
Applicant
no.
1
was
appointed
as
Anudeshak in above Madarsa under Sarv
Shiksha Abhiyan / Shiksha Guarantee
Yojna under U.P. Education Programme
Scheme.
Prior
to
this
issuance
of
recognition, on 11.06.2003 under Code of
Education under Article 65, this Madarsa
was recognized under U.P. Basic Education
Act, 1972 and Service Rules 1984 was
applicable for it. This Rule prohibits
appointment of any relative of any member
6 All. Jiya Afzal & Anr. Vs. State of U.P. & Anr.
195
of Management Committee at any Clerical
or Class IV post in above Madarsa. District
Basic Education Officer, after an enquiry
over a complaint made by Mohd. Hanif, did
found that above appointment was against
the
law.
Hence,
he
ceased
above
appointment and no order of any higher
court, quashing above order of District
Basic Education Officer, has been placed
before this Court on record or before
Investigating Officer. The submission of
resignation
on
01.05.2008
and
its
acceptance
on
11.05.2008
has
been
disputed by opposite party no. 2 learned
A.G.A. as well as by District Basic
Education Officer and Assistant Registrar,
Firms, Societies and Chits, Azamgarh
Region, Azamgarh. No such resignation
was
forwarded
or
submitted
before
Assistant Registrar, Firms, Societies and
Chits, Azamgarh Region, Azamgarh for
deleting name of applicant no. 2 from the
list of members of Management Committee
of Madarsa concerned. This manufacturing
of resignation and acceptance of same by
Management
Committee
along
with
preparation of agenda, as above, has been
challenged to be product of fraud and
manufacturing
of
fictitious
document,
having no mention in the office of Assistant
Registrar, Firms, Societies and Chits,
Azamgarh Region, Azamgarh, and this is a
question of fact to be seen by trial court.
Apparently, it seems to be with substance,
because no change or recital of acceptance
of resignation, if any, is there in the office
of Assistant Registrar responsible for
keeping
register
of
members
of
Management
of
a
Society
and
its
committee. Applicant no. 1 was appointed
as Anudeshak to impart education at
primary level in above Madarsa. Though,
he was not a regular employee, but was a
contractual teacher, but he received money
and honorarium from public exchequer, for
which there was guidelines for his
appointment, upon recommendation of
Village Education Committee, but the
documents filed by applicants on this
record is not of this fact i.e. when this
advertisement was made, how many
candidates applied, who were held to be not
eligible and how this applicant no. 1 was
only found to be recommended for
appointment. Hence, this allegation and
accusation
of
forged
and
fictitious
appointment is also a question of fact to be
seen by trial court upon the appreciation of
evidence, but apparently there is sufficient
prima facie evidence in case diary, on the
basis of which charge sheet was filed for
offences, as above, and cognizance over it
was taken by Magistrate.

6. Regarding locus or competence to
file an application for lodging a criminal
proceeding apex court in Vishwa Mitter of
M/s Vijay Bharat Cigarette Stores,
Dalhousie Road, Pathan-Kot versus O.P.
Poddar and others; 1983 (20) ACC 367
has propounded that it is clear that anyone
can set the criminal law in motion by filing
a complaint of fact, constituting an offence,
before a Magistrate, entitle to take
cognizance. It has been held that no court
can decline to take cognizance on the sole
ground that the complainant was not
competent to file a complaint. It has been
held that if any special statute prescribes
offence and makes special provision for
taking cognizance of such offence under
the
statute,
then
the
complainant,
requesting
the
Magistrate
to
take
cognizance of offence, must satisfy the
eligibility criteria prescribed by the statute.
In present case, the allegation levelled were
of offence of forgery, fraud, manufacturing
of fraudulent document and thereby having
appointment in public office, requiring no
condition precedent or competence of any
196 INDIAN LAW REPORTS ALLAHABAD SERIES
person to lodge any criminal proceeding.
Moreso, complainant i.e. opposite party no.
2 is erstwhile Manager of Madarsa
concerned, having locus to initiate a
proceeding
regarding
fraudulent
appointment in above Madarsa. Hence, on
this score too, this application is not with
any merit.

7. Accordingly, this application merits
its dismissal. The application is dismissed
as such.
----------

(2020)06ILR A196
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.02.2020

BEFORE
THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Application U/S 482 No. 34434 of 2016

Kallu Khan & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Adil Jamal

Counsel for the Opposite Parties:
A.G.A., Sri Rajesh Kumar, Shailendra Singh

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 482 - Indian
Penal
Code,1860-
Section
498-A,
323,504,506-quashing of complaint- Factual
correctness or incorrectness or appreciation of
same cannot be made, neither a detailed inquiry
nor a meticulous analysis of the material nor an
assessment of the reliability or genuineness of
the allegations in the complaint, is warranted
while
examining
prayer
for
quashing
of
complaint-To prevent abuse of the process of
the Court, High Court in exercise of its inherent
powers under section 482 could quash the
proceedings but there would be justification for
interference only when the complaint did not
disclose any offence or was frivolous vexatious
or oppressive.(Para 10)
In the instant case, the allegations made are not
general in nature rather the allegations are
specific. The applicants have harassed the
complainant and demanded dowry, even they
tried to cause injuries to the complainant. The
statements of PW-1 and PW-2 corroborated the
allegations made by the complainant(Para 16)

The application is dismissed. (E-6)

List of cases cited:-

1. Geeta Mehrotra Vs St. Of U.P. LAWS (SC) (
2012) 10 53; (2012) 10 SCC 741

2. Binod Kumar & ors. Vs St. Of Bih. & anr.
(2014) 10 SCC 663

3. Smt. Nagawwa Vs Veeranna (1976) 3 SCC
736

4. I.O.C. Vs NEPC India Ltd. (2006) 6 SCC 736

5. G.V. Rao Vs L.H.V. Prasad & ors. (2000) 3
SCC 693

6. B.S. Joshi & ors. Vs St. Of Har. & ors. AIR
(2003) SC 1386

7. Arun Singh & ors. Vs St. Of U.P.; (2020) SCC
Online SC 164

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. Applicants who are six in numbers,
have approached this Court by way of
filing an application under Section 482
Cr.P.C. with prayer to quash the entire
proceedings in Complaint Case No.491/IX
of 2015, (Smt. Tarannum Khatoon @
Sanowar vs. Waris Khan & others) u/s 498A, 323, 504 & 506 IPC and 3/4 D.P. Act,
P.S. Naraini, District Banda including
summoning order dated 22.12.2015 passed
by Chief Judicial Magistrate, Banda in the
aforesaid complaint case. Further prayer