Manjeet Kesarwani v. Dr. M.K. Tripathi), whereby the application moved under Section

Cr.P.C. for registration of an FIR against the opposite party no. 2.

4. The learned Chief Judicial Magistrate, after considering the record and medical papers, noted that injections were administered on 08.05.2019,

11.05.2019, 15.05.2019, and 05.06.2019. It was also noted that the revisionist himself had taken his son to King George Medical College, Lucknow, for further treatment. The learned Magistrate observed that no expert medical opinion was produced to establish the negligence of opposite party No.2. The learned Magistrate held that the allegations did 2 CRLR No. 114 of 2022 not disclose commission of any cognizable offence and accordingly rejected the said application.

5. It was submitted by learned counsel for revisionist that on 07.05.2019, the minor son of the revisionist, aged about eight years, was bitten by a stray dog near his house. The revisionist immediately took his son to Beli Hospital, Prayagraj, for medical treatment, where Dr. M.K. Tripathi (opposite party no. 2) attended him. The opposite party no. 2 examined the child and advised administration of four anti-rabies injections to be given at intervals. The first three injections were administered on

08.05.2019, 11.05.2019, and 15.05.2019 respectively. After a few days, the child's condition started to worsen. He began to suffer from paralysis and restlessness. The revisionist took his son immediately to Parvati Hospital, Prayagraj, where the doctors found that the child was in a serious condition. They advised the revisionist to take the patient to a bigger hospital for advanced treatment. It was further submitted that the revisionist took his son to King George Medical College, Lucknow. The doctors opined that the rabies infection had already spread in the entire body of his son because RIG injection was not given at proper time. Despite best possible treatment at Lucknow, the son of revisionist died on

13.06.2019 due to negligence of concerned doctor. Learned counsel for the revisionist submitted that the learned Chief Judicial Magistrate, Allahabad, has committed a grave error of law and fact in rejecting the application under Section 156(3) Cr.P.C., despite the record clearly disclosing the commission of cognizable offences arising out of gross medical negligence on the part of opposite party no. 2.

6. Per contra, learned A.G.A. submits that opposite party no. 2 was a pharmacist, not a doctor, and his duty was limited to follow the instructions prescribed by medical officers. No evidence has been produced to establish any deliberate or intentional negligence on his part. There is no illegality or perversity in the impugned order, which may call for any interference by this Court, thus the present revision is liable to be dismissed.

7. I have carefully considered the rival submissions of the parties and perused the record. 3 CRLR No. 114 of 2022

8. Law regarding jurisdiction under Section 156(3) Cr.P.C. is well settled. Power under Section 156(3) Cr.P.C. has to be exercised by Magistrate judicially on proper grounds and not in a mechanical manner. If application does not indicate that any evidence is required to be collected and preserved and applicant is familiar with names of accused persons and witnesses then in such a case, no investigation by police is required. 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 a '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. In the case of Smt. Masuman vs. State of U.P. & others 2007 (1) ALJ 221 and some other cases, the single judges of the Court have taken a view that if the application under section 156 (3) Cr.P.C. discloses the commission of a prima-facie cognizable offence, then it is obligatory for the magistrate to direct investigation after registration of the FIR on the basis of that application. Disagreeing with this view, the following question was referred to the larger Bench for decision in the case of Sukhwasi vs. State of U.P. (supra). "Whether the Magistrate is bound to pass an order on each and every application under section 156(3)Cr.P.C. containing allegations of commission of a cognizable offence for registration of the FIR and its investigation by the police even if those allegations, prima-facie, do not appear to be genuine and do not appeal to reason, or he can exercise judicial discretion in the matter and can pass order for treating it as 'complaint' or to reject it in suitable cases"?

9. After having considered 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. has answered the question 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 4 CRLR No. 114 of 2022 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."

10. 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 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).

11. From the perusal of the record, it is clear that the son of the revisionist was bitten by a stray dog on 07.05.2019, and thereafter, he was taken to Beli Hospital, Allahabad, where he was administered anti-rabies injections on 08.05.2019, 11.05.2019, and 15.05.2019. After a few days of the said treatment, the child suffered a paralysis attack, whereupon the revisionist immediately took him to Parvati Hospital, Allahabad. The doctors at Parvati Hospital, after examining the child, found his condition critical and referred him to King George Medical University, Lucknow, for advanced treatment. The child was thereafter taken to Lucknow, but despite the treatment provided by senior doctors, he unfortunately expired on 13.06.2019.

12. From the above facts, it is evident that the revisionist's son was continuously under medical supervision and had received the required anti-rabies injections. There is nothing on record to indicate that the 5 CRLR No. 114 of 2022 opposite party no. 2 had deliberately neglected the patient or had acted in a reckless or careless manner. The material available on record does not disclose any intentional or criminal negligence on the part of the opposite party no. 2.

13. The learned Chief Judicial Magistrate, Allahabad, has rightly observed that even if any lapse occurred in the course of treatment, the same may amount to civil negligence, but it does not constitute a cognizable offence warranting direction for investigation under Section 156(3) Cr.P.C.

14. In this regard, reliance may be placed upon the judgment of the Hon'ble Supreme Court in Priyanka Srivastava and Another vs. State of Uttar Pradesh and Others, (2015) 6 SCC 287, wherein the Apex Court has held that: "The power under Section 156(3) Cr.P.C. warrants application of judicial mind. A court of law is involved. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really aggrieved citizen with clean hands must have free access to invoke the said power, but when pervert litigations take this route to harass their fellow citizens, efforts are to be made to scuttle and curb the same."

15. Applying the aforesaid principle to the facts of the present case, it is apparent that the learned Chief Judicial Magistrate, Allahabad, has exercised proper judicial discretion while rejecting the application under Section 156(3) Cr.P.C. dated 03.11.2021. The impugned order is based on due consideration of the facts and law and does not suffer from any illegality or irregularity warranting interference by this Court.

16. Accordingly, the present revision is dismissed. October 8, 2025 Md Faisal (Chawan Prakash,J.) MOHD FAISAL High Court of Judicature at Allahabad

Cr.P.C. for registration of an FIR against the opposite party no. 2.

4. The learned Chief Judicial Magistrate, after considering the record and medical papers, noted that injections were administered on 08.05.2019,

11.05.2019, 15.05.2019, and 05.06.2019. It was also noted that the revisionist himself had taken his son to King George Medical College, Lucknow, for further treatment. The learned Magistrate observed that no expert medical opinion was produced to establish the negligence of opposite party No.2. The learned Magistrate held that the allegations did 2 CRLR No. 114 of 2022 not disclose commission of any cognizable offence and accordingly rejected the said application.

5. It was submitted by learned counsel for revisionist that on 07.05.2019, the minor son of the revisionist, aged about eight years, was bitten by a stray dog near his house. The revisionist immediately took his son to Beli Hospital, Prayagraj, for medical treatment, where Dr. M.K. Tripathi (opposite party no. 2) attended him. The opposite party no. 2 examined the child and advised administration of four anti-rabies injections to be given at intervals. The first three injections were administered on

08.05.2019, 11.05.2019, and 15.05.2019 respectively. After a few days, the child's condition started to worsen. He began to suffer from paralysis and restlessness. The revisionist took his son immediately to Parvati Hospital, Prayagraj, where the doctors found that the child was in a serious condition. They advised the revisionist to take the patient to a bigger hospital for advanced treatment. It was further submitted that the revisionist took his son to King George Medical College, Lucknow. The doctors opined that the rabies infection had already spread in the entire body of his son because RIG injection was not given at proper time. Despite best possible treatment at Lucknow, the son of revisionist died on

13.06.2019 due to negligence of concerned doctor. Learned counsel for the revisionist submitted that the learned Chief Judicial Magistrate, Allahabad, has committed a grave error of law and fact in rejecting the application under Section 156(3) Cr.P.C., despite the record clearly disclosing the commission of cognizable offences arising out of gross medical negligence on the part of opposite party no. 2.

6. Per contra, learned A.G.A. submits that opposite party no. 2 was a pharmacist, not a doctor, and his duty was limited to follow the instructions prescribed by medical officers. No evidence has been produced to establish any deliberate or intentional negligence on his part. There is no illegality or perversity in the impugned order, which may call for any interference by this Court, thus the present revision is liable to be dismissed.

7. I have carefully considered the rival submissions of the parties and perused the record. 3 CRLR No. 114 of 2022

8. Law regarding jurisdiction under Section 156(3) Cr.P.C. is well settled. Power under Section 156(3) Cr.P.C. has to be exercised by Magistrate judicially on proper grounds and not in a mechanical manner. If application does not indicate that any evidence is required to be collected and preserved and applicant is familiar with names of accused persons and witnesses then in such a case, no investigation by police is required. 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 a '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. In the case of Smt. Masuman vs. State of U.P. & others 2007 (1) ALJ 221 and some other cases, the single judges of the Court have taken a view that if the application under section 156 (3) Cr.P.C. discloses the commission of a prima-facie cognizable offence, then it is obligatory for the magistrate to direct investigation after registration of the FIR on the basis of that application. Disagreeing with this view, the following question was referred to the larger Bench for decision in the case of Sukhwasi vs. State of U.P. (supra). "Whether the Magistrate is bound to pass an order on each and every application under section 156(3)Cr.P.C. containing allegations of commission of a cognizable offence for registration of the FIR and its investigation by the police even if those allegations, prima-facie, do not appear to be genuine and do not appeal to reason, or he can exercise judicial discretion in the matter and can pass order for treating it as 'complaint' or to reject it in suitable cases"?

9. After having considered 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. has answered the question 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 4 CRLR No. 114 of 2022 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."

10. 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 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).

11. From the perusal of the record, it is clear that the son of the revisionist was bitten by a stray dog on 07.05.2019, and thereafter, he was taken to Beli Hospital, Allahabad, where he was administered anti-rabies injections on 08.05.2019, 11.05.2019, and 15.05.2019. After a few days of the said treatment, the child suffered a paralysis attack, whereupon the revisionist immediately took him to Parvati Hospital, Allahabad. The doctors at Parvati Hospital, after examining the child, found his condition critical and referred him to King George Medical University, Lucknow, for advanced treatment. The child was thereafter taken to Lucknow, but despite the treatment provided by senior doctors, he unfortunately expired on 13.06.2019.

12. From the above facts, it is evident that the revisionist's son was continuously under medical supervision and had received the required anti-rabies injections. There is nothing on record to indicate that the 5 CRLR No. 114 of 2022 opposite party no. 2 had deliberately neglected the patient or had acted in a reckless or careless manner. The material available on record does not disclose any intentional or criminal negligence on the part of the opposite party no. 2.

13. The learned Chief Judicial Magistrate, Allahabad, has rightly observed that even if any lapse occurred in the course of treatment, the same may amount to civil negligence, but it does not constitute a cognizable offence warranting direction for investigation under Section 156(3) Cr.P.C.

14. In this regard, reliance may be placed upon the judgment of the Hon'ble Supreme Court in Priyanka Srivastava and Another vs. State of Uttar Pradesh and Others, (2015) 6 SCC 287, wherein the Apex Court has held that: "The power under Section 156(3) Cr.P.C. warrants application of judicial mind. A court of law is involved. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really aggrieved citizen with clean hands must have free access to invoke the said power, but when pervert litigations take this route to harass their fellow citizens, efforts are to be made to scuttle and curb the same."

15. Applying the aforesaid principle to the facts of the present case, it is apparent that the learned Chief Judicial Magistrate, Allahabad, has exercised proper judicial discretion while rejecting the application under Section 156(3) Cr.P.C. dated 03.11.2021. The impugned order is based on due consideration of the facts and law and does not suffer from any illegality or irregularity warranting interference by this Court.

16. Accordingly, the present revision is dismissed. October 8, 2025 Md Faisal (Chawan Prakash,J.) MOHD FAISAL High Court of Judicature at Allahabad