Imtiyaz Ahmad vs State of U.P. and Another

S.K. Agarwal, J.—Heard learned Counsel for the applicant Sri B. K. Tripathi and learned Counsel for the opposite party Sri I. K. Chaturvedi.

The contention raised before this Court is that no prosecution u/s 211, I.P.C. can be launched by the complainant after the application made by the applicant u/s 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 inquiry report submitted by the police, as directed by him. The complainant was a named accused in that application.

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

Learned Counsel for the applicant claims that a prosecution u/s 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 inquiry held on the direction of the learned Addl. Chief Judicial Magistrate. On the basis of that tentative inquiry, it was found by the police that the application u/s 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 exists, 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.

Learned Counsel for the opposite party has cited a decision of the Apex Court in M.L. Sethi Vs. R.P. Kapur and Another, . At 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 cognizable 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 u/s 211, I.P.C. On his complaint, the Magistrate took cognizance. The evidence clearly shows that on the date of cognizance, no judicial order was made by any Court in respect of written report lodged against R. P. Kapur, though subsequent to this cognizance R. P. Kapur was arrested and charge-sheeted by the police. The Apex Court had held that the question about legality of cognizance is to be judged in relation to the date on which cognizance was actually taken and as on that date, there was no proceeding pending in any Court in which or in relation to which offence u/s 211, I.P.C. was alleged to have been committed and, therefore, the Magistrate was not barred from taking cognizance of the offence on such a complaint by the provisions of Section 195(1) (b), Cr. P.C.

The facts of the present case clearly revealed that a private complaint in the present case u/s 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 u/s 156(3), Cr. P.C. finally came to be rejected. Therefore, this is a case wherein the result of the inquiry was subject-matter of a proceeding which will be covered fully by the term in relation to which offence u/s 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 u/s 211, I.P.C. was the date of submission of the inquiry report by the police. The prosecution of the applicant u/s 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 u/s 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 inquiry report from the police. It shall not be out of place to mention that this is simply an inquiry 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.

The order rejecting the application u/s 156(3), Cr. P.C. was passed by the learned Additional Chief Judicial Magistrate, Azamgarh, on 27.3.1997. The application giving rise to the present proceeding u/s 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 u/s 211, I.P.C. It shall otherwise be an abuse of process of the Court.

In view of above, the present application is allowed and the proceedings pending in the Court of Additional Chief Judicial Magistrate I, Azamgarh, in Mohd. Hammad v. Imtiyaz Ahmad Complaint Case No. 386 of 1997, against present applicant are hereby quashed.