High Court

from the applicant. Learned counsel for the applicant submitted that there are allegations of robbery and recovery was also required to be effected and thus, investigation by Police was necessary but learned Magistrate has registered the application of applicant as a complaint. Learned counsel has referred case of Rakesh v. State of UP and Another (Application U/S 482 No.44622 of 2019), decided on 09.12.2019 and submitted that impugned order is against law and thus, liable to be set aside.

4. Learned A.G.A. has opposed the application and submitted that there is no illegality or perversity in the impugned order.

5. I have considered the rival submissions and perused the record.

6. The issue whether the Magistrate is bound to pass an order for registration of the FIR and its investigation by the police on each and every application under section 156 (3) Cr.P.C. containing allegation of commission of a cognizance offence is no more 'res- integra', as this controversy has been settled by the Division Bench of the Court in the case of Sukhwasi vs. State of U.P. 2007 (59) ACC 739. After considering the full Bench decision of the Court in the case of Ram Babu Gupta & others vs. State of U.P. 2001 (43) ACC 50 and many other cases, the Division Bench in the case of Sukhwasi vs. State of U.P. (supra) has answered the question referred to it, in paragraph 23 of the judgment as under:- "The reference is, therefore, answered in the manner that it is not incumbent upon a Magistrate to allow an application under section 156(3) Cr.P.C. and there is no such legal mandate. He may or may not allow the application in his discretion. The second leg of the reference is also answered in the manner that the Magistrate has a discretion to treat an application under section 156(3) Cr.P.C. as a complaint."

7. Thus, it is apparent that Magistrate is not bound to pass order of investigation by police, even if such application discloses cognizable offence. The Magistrate is required to apply its mind to find out whether the first information sought to be lodged by applicant had any substance or not. Even in the cases, where prima facie cognizable offence is disclosed from the averments made in the application under section 156 (3) Cr.P.C. in appropriate case according to facts and nature of the offences alleged to have been committed, the Magistrate can decline to direct investigation and in such cases the application under section 156(3) Cr.P.C. can be treated as complaint.

8. In case Mrs. Priyanka Srivastava and another vs. State of U.P. and others; 2015 AIR(SC)1758, the Hon'ble Apex Court held as under: "At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same."

9. Thus, while dealing with application under Section 156(3) Cr.P.C., Magistrate is required to apply its mind to find out whether the first information sought to be lodged by the applicant had any substance or not. If the allegations made in the application under section 156(3) Cr.P.C. prima-facie appear to be without any substance, then in such case the Magistrate can refuse to direct registration of the FIR and its investigation by the police, even if the application contains the allegations of commission of a cognizable offence. In such case, the Magistrate is fully competent to reject the application. Even in the cases, where prima facie cognizable offence is disclosed from the averments made in the application under section 156 (3) Cr.P.C. in appropriate case according to facts and nature of the offences alleged to have been committed, the Magistrate can decline to direct investigation and in such cases the application under section 156(3) Cr.P.C. can be treated as complaint, as held by the Division Bench in the case of Sukhwasi vs. State of U.P. (supra). The provisions of Section 156(3) Cr.P.C. have been reincarnated in Section 173(4)/175(3) of B.N.S.S. and similarly the provisions of Section 482 Cr.P.C. have been reincarnated in Section 528 of B.N.S.S. Thus, the aforesaid legal analogy would be applicable in respect of an application filed under Section 173(4) B.N.S.S.

10. In the instant matter, it appears that both the parties are known to each other and complainant is a practising Advocate at District Court, Gorakhpur. It was alleged that in a civil case being pursued by the applicant, the alleged persons (opposite party no.2 to 7) are opposite parties. It was alleged that on 12.09.2024 at about 08:00 AM, while applicant was going to Court, the opposite party no.2 to 7 stopped him and they have abused and assaulted him with hockey, iron rod etc. and resultantly he has sustained several injuries. The opposite party no.2- Mohd. Arif has given a iron rod blow at his head, however his head was saved by helmet. It was further alleged that opposite party no.2 to 7 have damaged the two- wheeler of the applicant and snatched documents including ATM card and an amount of Rs. 7,000/- from him. It appears that the applicant/complainant has not filed any injury report before the Trial court and thus, the version that applicant was attacked by the said private opposite parties with hockey, iron rod etc. is not supported by any medical evidence. Learned Magistrate has observed in the impugned order that there is property related dispute between the parties and all the facts are in the knowledge of applicant. In view of these attending facts and circumstances, it cannot be said that by registering the application of applicant under Section – 173(4) BNSS as a complaint, learned Magistrate has committed any patent illegality. In case of Rakesh (supra), the facts of the matter were on different footing and there is no such law that in every application under Section – 156(3) Cr.P.C./173(4) BNSS, if allegations of cognizable offence have been levelled, the Magistrate is bound to order investigation by the police. The Magistrate is required to apply its mind to find out whether the information sought to be lodged by the applicant has any substance and whether it warrants a direction for investigation by police. In the instant matter, considering facts of the matter and position of law, it cannot be said that there has been any abuse of the process of Court or miscarriage of justice, so as to require any interference by this Court by invoking extraordinary powers under Section 528 B.N.S.S. The application under Section 528 B.N.S.S. lacks merit and thus, liable to be dismissed.

11. Accordingly, the application under Section 528 B.N.S.S. is hereby dismissed. Order Date :- 24.4.2025 Rama Kant

from the applicant. Learned counsel for the applicant submitted that there are allegations of robbery and recovery was also required to be effected and thus, investigation by Police was necessary but learned Magistrate has registered the application of applicant as a complaint. Learned counsel has referred case of Rakesh v. State of UP and Another (Application U/S 482 No.44622 of 2019), decided on 09.12.2019 and submitted that impugned order is against law and thus, liable to be set aside.

4. Learned A.G.A. has opposed the application and submitted that there is no illegality or perversity in the impugned order.

5. I have considered the rival submissions and perused the record.

6. The issue whether the Magistrate is bound to pass an order for registration of the FIR and its investigation by the police on each and every application under section 156 (3) Cr.P.C. containing allegation of commission of a cognizance offence is no more 'res- integra', as this controversy has been settled by the Division Bench of the Court in the case of Sukhwasi vs. State of U.P. 2007 (59) ACC 739. After considering the full Bench decision of the Court in the case of Ram Babu Gupta & others vs. State of U.P. 2001 (43) ACC 50 and many other cases, the Division Bench in the case of Sukhwasi vs. State of U.P. (supra) has answered the question referred to it, in paragraph 23 of the judgment as under:- "The reference is, therefore, answered in the manner that it is not incumbent upon a Magistrate to allow an application under section 156(3) Cr.P.C. and there is no such legal mandate. He may or may not allow the application in his discretion. The second leg of the reference is also answered in the manner that the Magistrate has a discretion to treat an application under section 156(3) Cr.P.C. as a complaint."

7. Thus, it is apparent that Magistrate is not bound to pass order of investigation by police, even if such application discloses cognizable offence. The Magistrate is required to apply its mind to find out whether the first information sought to be lodged by applicant had any substance or not. Even in the cases, where prima facie cognizable offence is disclosed from the averments made in the application under section 156 (3) Cr.P.C. in appropriate case according to facts and nature of the offences alleged to have been committed, the Magistrate can decline to direct investigation and in such cases the application under section 156(3) Cr.P.C. can be treated as complaint.

8. In case Mrs. Priyanka Srivastava and another vs. State of U.P. and others; 2015 AIR(SC)1758, the Hon'ble Apex Court held as under: "At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same."

9. Thus, while dealing with application under Section 156(3) Cr.P.C., Magistrate is required to apply its mind to find out whether the first information sought to be lodged by the applicant had any substance or not. If the allegations made in the application under section 156(3) Cr.P.C. prima-facie appear to be without any substance, then in such case the Magistrate can refuse to direct registration of the FIR and its investigation by the police, even if the application contains the allegations of commission of a cognizable offence. In such case, the Magistrate is fully competent to reject the application. Even in the cases, where prima facie cognizable offence is disclosed from the averments made in the application under section 156 (3) Cr.P.C. in appropriate case according to facts and nature of the offences alleged to have been committed, the Magistrate can decline to direct investigation and in such cases the application under section 156(3) Cr.P.C. can be treated as complaint, as held by the Division Bench in the case of Sukhwasi vs. State of U.P. (supra). The provisions of Section 156(3) Cr.P.C. have been reincarnated in Section 173(4)/175(3) of B.N.S.S. and similarly the provisions of Section 482 Cr.P.C. have been reincarnated in Section 528 of B.N.S.S. Thus, the aforesaid legal analogy would be applicable in respect of an application filed under Section 173(4) B.N.S.S.

10. In the instant matter, it appears that both the parties are known to each other and complainant is a practising Advocate at District Court, Gorakhpur. It was alleged that in a civil case being pursued by the applicant, the alleged persons (opposite party no.2 to 7) are opposite parties. It was alleged that on 12.09.2024 at about 08:00 AM, while applicant was going to Court, the opposite party no.2 to 7 stopped him and they have abused and assaulted him with hockey, iron rod etc. and resultantly he has sustained several injuries. The opposite party no.2- Mohd. Arif has given a iron rod blow at his head, however his head was saved by helmet. It was further alleged that opposite party no.2 to 7 have damaged the two- wheeler of the applicant and snatched documents including ATM card and an amount of Rs. 7,000/- from him. It appears that the applicant/complainant has not filed any injury report before the Trial court and thus, the version that applicant was attacked by the said private opposite parties with hockey, iron rod etc. is not supported by any medical evidence. Learned Magistrate has observed in the impugned order that there is property related dispute between the parties and all the facts are in the knowledge of applicant. In view of these attending facts and circumstances, it cannot be said that by registering the application of applicant under Section – 173(4) BNSS as a complaint, learned Magistrate has committed any patent illegality. In case of Rakesh (supra), the facts of the matter were on different footing and there is no such law that in every application under Section – 156(3) Cr.P.C./173(4) BNSS, if allegations of cognizable offence have been levelled, the Magistrate is bound to order investigation by the police. The Magistrate is required to apply its mind to find out whether the information sought to be lodged by the applicant has any substance and whether it warrants a direction for investigation by police. In the instant matter, considering facts of the matter and position of law, it cannot be said that there has been any abuse of the process of Court or miscarriage of justice, so as to require any interference by this Court by invoking extraordinary powers under Section 528 B.N.S.S. The application under Section 528 B.N.S.S. lacks merit and thus, liable to be dismissed.

11. Accordingly, the application under Section 528 B.N.S.S. is hereby dismissed. Order Date :- 24.4.2025 Rama Kant