Gulam Sarwar v. Firoz Aslam Ansari and others under Section

"It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to quash the impugned order dated 16.01.2025 passed by the Chief Judicial Magistrate Bhadohi Gyanpur in Misc. Application No.1460 of 2024 Gulam Sarwar Vs Firoz Aslam Ansari and others under Section 175(3) of BNSS and further prayed that this Hon'ble Court be pleas direct the concern court to pass the order for lodging the FIR in the case Misc. Application No.1460 of 2024 Gulam Sarwar Vs Firoz Aslam Ansari and others under Section 175(3)) of BNSS Police Bhadohi District Bhadohi."

3. It is submitted by learned counsel for the applicant that applicant has moved an application under Section - 175 (3) BNSS making allegations that he is working in firm 'Rafa Rugs' as carpet designer and that on 06.12.2024 the private opposite parties have abused and assaulted the applicant and thus, a cognizable offence was made out against the private opposite parties but the learned Magistrate has declined the prayer of applicant for investigation by the police and the said application was registered as a complaint case vide impugned order dated

16.01.2025. Learned counsel submitted that applicant is a 58 years old person and he was humiliated and assaulted and to survive in the said company it is necessary that a direction may be made to the police for registration and investigation of the case. Learned counsel for applicant has referred case of Mukesh Kharwar Vs. State of U.P. and 3 Others 2024 LawSuit(All) 1518 and submitted that a prima facie case for investigation by the police was made out and thus, the impugned order is 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, 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).

10. In the case of Mukesh Kharwar (supra), in paragraph no.15 and 16, this Court held as under :- "15. From the above discussion, it is clear that the scheme of Cr.P.C. and the prevailing circumstances require that the option to direct the registration of the case and its investigation by the police should be exercised where some "investigation" is required, which is of a nature that is not possible for the private complainant, and which can only be done by the police upon whom statute has conferred the powers essential for investigation, for example (1) where the full details of the accused are not known to the complainant and the same can be determined only as a result of investigation, or (2) where recovery of abducted person or stolen property is required to be made by conducting raids or searches of suspected places or persons, or (3) where for the purpose of launching a successful prosecution of the accused evidence is required to be collected and preserved. To illustrate by example cases may be visualised where for production before Court at the trial (a) sample of blood soaked soil is to be taken and kept sealed for fixing the place of incident; or (b) recovery of case property is to be made and kept sealed; or (c) recovery under Section 27 of the Evidence Act; or (d) preparation of inquest report; or (e) witnesses are not known and have to be found out or discovered through the process of investigation.

16. Thus, where the complainant is in possession of the complete details of all the accused as well as the witnesses who have to be examined and neither recovery is needed nor any such material evidence is required to be collected which can be done only by the police, no "investigation" would normally be required and the procedure of complaint case should be adopted. It must be kept in mind that adding unnecessary cases to the diary of the police would impair their efficiency in respect of cases genuinely requiring investigation. Besides even after taking cognizance and proceeding under Chapter XV the Magistrate can still under Section 202(1) Cr. P.C. order investigation, even thought of a limited nature."

11. The provisions of Section - 156 (3) Cr.P.C. have been reincarnated in Section - 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 175(3) B.N.S.S. In the instant matter, it appears that applicant is working in 'Raga Rugs' as a carpet designer, whose owner is one Rohil Alam. Opposite party no.2 Firoz Aslam Ansari is brother of said Rohil Alam. It was alleged by the applicant that the opposite party no.2 to 6 have abused, threatened and assaulted him. Five persons have been arrayed as accused and merely a vague allegation has been made that they have abused and assaulted him. There is nothing to show that the applicant has sustained any injury. All the facts relating to incident are in the knowledge of applicant. In view of these facts and circumstances, it cannot be said that by registering the application under Section - 175 (3) BNSS the learned Magistrate has committed any illegality or perversity. In view of specific facts and circumstances of the matter, the aforesaid case of Mukesh Kharwar (supra) is of no help to the applicant. There is nothing to show that there has been any abuse of the process of Court or the impugned order has resulted into 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.

12. Accordingly, the application u/s 528 B.N.S.S. is hereby dismissed. Order Date :- 30.5.2025 S Rawat

"It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to quash the impugned order dated 16.01.2025 passed by the Chief Judicial Magistrate Bhadohi Gyanpur in Misc. Application No.1460 of 2024 Gulam Sarwar Vs Firoz Aslam Ansari and others under Section 175(3) of BNSS and further prayed that this Hon'ble Court be pleas direct the concern court to pass the order for lodging the FIR in the case Misc. Application No.1460 of 2024 Gulam Sarwar Vs Firoz Aslam Ansari and others under Section 175(3)) of BNSS Police Bhadohi District Bhadohi."

3. It is submitted by learned counsel for the applicant that applicant has moved an application under Section - 175 (3) BNSS making allegations that he is working in firm 'Rafa Rugs' as carpet designer and that on 06.12.2024 the private opposite parties have abused and assaulted the applicant and thus, a cognizable offence was made out against the private opposite parties but the learned Magistrate has declined the prayer of applicant for investigation by the police and the said application was registered as a complaint case vide impugned order dated

16.01.2025. Learned counsel submitted that applicant is a 58 years old person and he was humiliated and assaulted and to survive in the said company it is necessary that a direction may be made to the police for registration and investigation of the case. Learned counsel for applicant has referred case of Mukesh Kharwar Vs. State of U.P. and 3 Others 2024 LawSuit(All) 1518 and submitted that a prima facie case for investigation by the police was made out and thus, the impugned order is 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, 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).

10. In the case of Mukesh Kharwar (supra), in paragraph no.15 and 16, this Court held as under :- "15. From the above discussion, it is clear that the scheme of Cr.P.C. and the prevailing circumstances require that the option to direct the registration of the case and its investigation by the police should be exercised where some "investigation" is required, which is of a nature that is not possible for the private complainant, and which can only be done by the police upon whom statute has conferred the powers essential for investigation, for example (1) where the full details of the accused are not known to the complainant and the same can be determined only as a result of investigation, or (2) where recovery of abducted person or stolen property is required to be made by conducting raids or searches of suspected places or persons, or (3) where for the purpose of launching a successful prosecution of the accused evidence is required to be collected and preserved. To illustrate by example cases may be visualised where for production before Court at the trial (a) sample of blood soaked soil is to be taken and kept sealed for fixing the place of incident; or (b) recovery of case property is to be made and kept sealed; or (c) recovery under Section 27 of the Evidence Act; or (d) preparation of inquest report; or (e) witnesses are not known and have to be found out or discovered through the process of investigation.

16. Thus, where the complainant is in possession of the complete details of all the accused as well as the witnesses who have to be examined and neither recovery is needed nor any such material evidence is required to be collected which can be done only by the police, no "investigation" would normally be required and the procedure of complaint case should be adopted. It must be kept in mind that adding unnecessary cases to the diary of the police would impair their efficiency in respect of cases genuinely requiring investigation. Besides even after taking cognizance and proceeding under Chapter XV the Magistrate can still under Section 202(1) Cr. P.C. order investigation, even thought of a limited nature."

11. The provisions of Section - 156 (3) Cr.P.C. have been reincarnated in Section - 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 175(3) B.N.S.S. In the instant matter, it appears that applicant is working in 'Raga Rugs' as a carpet designer, whose owner is one Rohil Alam. Opposite party no.2 Firoz Aslam Ansari is brother of said Rohil Alam. It was alleged by the applicant that the opposite party no.2 to 6 have abused, threatened and assaulted him. Five persons have been arrayed as accused and merely a vague allegation has been made that they have abused and assaulted him. There is nothing to show that the applicant has sustained any injury. All the facts relating to incident are in the knowledge of applicant. In view of these facts and circumstances, it cannot be said that by registering the application under Section - 175 (3) BNSS the learned Magistrate has committed any illegality or perversity. In view of specific facts and circumstances of the matter, the aforesaid case of Mukesh Kharwar (supra) is of no help to the applicant. There is nothing to show that there has been any abuse of the process of Court or the impugned order has resulted into 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.

12. Accordingly, the application u/s 528 B.N.S.S. is hereby dismissed. Order Date :- 30.5.2025 S Rawat