IMTIYAZ AHMAD Vs. STATE OF U P

JUDGEMENT

(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 com ­plainant 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.) 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(l)(b)(ii), Cr. P.C. The contention apparently has force. There was no regular investigation conducted by the police in that applica ­tion. 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(l)(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.