Prem Pal Singh v. Abhishek Kumar and

Hon'ble Saurabh Srivastava,J.

1. Heard Sri Hemendra Kumar, learned counsel for the petitioner and learned A.G.A. for the State-respondents.

2. The instant petition has been preferred for challenging the order dated 13.08.2024 passed by learned Additional Session Judge (Senior Division)/ Additional Chief Judicial Magistrate, Court No.3, Bulandshahar in Criminal Misc. Case No.189 of 2024 through which application preferred under Section 175(3) of B.N.S.S. at the behest of the petitioner has been treated as complaint case and posted the matter for 13.09.2024 for recording the statement of the petitioner being complainant in pursuance to Section 223 of B.N.S.S.

3. Being aggrieved with the order dated 13.08.2024, petitioner preferred Criminal Revision No.292 of 2024 (Prem Pal Singh vs. Abhishek Kumar and 9 others) with the specific stand that once the cognizable offence has been made out it is the direction which has ought to have been given by learned Magistrate for directing concerned police station to lodge the F.I.R., while substantiating the grounds taken up while preferring criminal revision learned counsel for the petitioner submits that factual matrix of the matter reveals that it is the theft of near about four thousand bricks which can be ascertained only by way of conducting proper inquiry in pursuance to the F.I.R. if directed by concerned learned Magistrate since the offence can only be proved in pursuance to the inquiry which might recovered the stolen bricks and then prove guilty to the implicated persons as mentioned in the application under Section 175 (3) of B.N.S.S. itself.

4. While substantiating arguments raised by learned counsel for the petitioner, he relief upon the some of the judgements rendered by Hon'ble Apex Court i.e. case of Lalita Kumari vs. Government of U.P. and others, decided on 12.11.2013 by five Judges Bench of the Hon'ble Apex Court in Criminal Appeal No.1410 of 2011, 1267 of 2007, in Writ Petition (Criminal.) No.68 of 2008 along with Contempt Petition (C) No.26722 of 2008 in Writ Petition (Criminal) No.68 of 2008. It is also submitted that co-ordinate Bench of this Court also decided one case of Jafar Abbas Zaidi vs. State of U.P. and 4 others, after considering the judgements rendered by Hon'ble Apex Court, Division Bench of this Court where similar stand has been held as justified which has been argued by learned counsel for the petitioner that once the cognizable offence has been made out, it is the duty of the concerned Magistrate for passing specific direction for lodging the F.I.R. and the matter may be treated as State case.

5. Per contra, learned A.G.A. vehemently opposed the prayer as made in the petition by way of concluding stand taken up by learned counsel for the petitioner, while vehemently opposing the specific prayer for seeking direction in favour of the learned Magistrate to direct the concerned police station to register the case by way of lodging F.I.R., a report dated 28.07.2024 has been referred by learned A.G.A. which is appended as Annexure-2 available at page No.29 of the instant petition, wherein the specific report reveals that there is a dispute between the parties which is of civil nature, since the civil Suit No.534 of 2024 is still pending between the parties. Learned A.G.A. also submitted that so far regarding possession of the Plot No.192 is concerned, the same has also put under dispute in pursuance to rival contention received from both the parties.

6. After having rival submission extended by learned counsel for the parties, the specific incidence as highlighted by learned counsel for the petitioner with regard to stolen of four thousand bricks are concerned, the same has never been brought to the notice of learned court concerned at the time of submission of report by concerned Sub-Inspector, P.S. Kakore, District Bulandshahar on 28.07.2024. The application preferred at the behest of the petitioner under Section 175 (3) B.N.S.S., if carefully considered the same is having trail of incidence wherein an incidence mentioned under para 3 is of 15.11.2023 and subsequently a second incidence mentioned under para 4 is of 28.05.2024 and thereafter another one mentioned in para 5 is of 23.06.2024 and incident mentioned in para 6 is of 08.07.2024, meaning thereby the incidence mentioned under para 4 related to dated 28.05.2024 is specific in nature with regard to stolen of four thousand bricks but before that the incidence dated 15.11.2023 is also mentioned in application under Section 175 (3) of B.N.S.S. which is the prying most and top incidence which arises cause of action in favour of the petitioner for preferring an application in shape of information before the concerned police station and if not accepted or given any credence or heat thereupon the application under Section 175 (3) is quite maintainable, but unfortunately the incidence dated 15.11.2023, 28.05.2024, 23.06.2024 and 08.07.2024 has been collectively informed through application under Section 175 (3) dated 24.07.2024 itself. With regard to specific information for the specific incident, there is hardly any document available with the instant petition and as such, it is quite clear that by way of combining incidences occurred from 15.11.2023 to 08.07.2024 has been collectively informed through the application dated 24.07.2024, under Section 175 (3) of B.N.S.S.

7. The specific submission made by learned counsel for the petitioner that the cognizable offence has been made out in respect to the incidence dated 28.05.2024 cannot be treated separately by way of information at the time of entertaining application under Section 175 (3) dated 24.07.2024 by learned Magistrate concerned and the related incidence cannot be directed by the learned concerned Magistrate by way of treating some incidence as treated as complaint and some incidence directed to be registered F.I.R. before the concerned police station. These judgements relied upon by learned counsel for the petitioner is having material to be given highest regard by this Court but unfortunately the same are not applicable in the instant matter. The collective incidence narrated through one application cannot be ascertained and determined only by way of directing the concerned police station for lodging F.I.R. whereas the report which has been received from the concerned police station has been given credence by learned Magistrate and the matter is rightly directed to register as complaint case. No infirmity found in the revisional order as well and as such, instant petition is dismissed. Order Date :- 13.2.2025 Jitendra JITENDRA KUMAR PATEL High Court of Judicature at Allahabad

Hon'ble Saurabh Srivastava,J.

1. Heard Sri Hemendra Kumar, learned counsel for the petitioner and learned A.G.A. for the State-respondents.

2. The instant petition has been preferred for challenging the order dated 13.08.2024 passed by learned Additional Session Judge (Senior Division)/ Additional Chief Judicial Magistrate, Court No.3, Bulandshahar in Criminal Misc. Case No.189 of 2024 through which application preferred under Section 175(3) of B.N.S.S. at the behest of the petitioner has been treated as complaint case and posted the matter for 13.09.2024 for recording the statement of the petitioner being complainant in pursuance to Section 223 of B.N.S.S.

3. Being aggrieved with the order dated 13.08.2024, petitioner preferred Criminal Revision No.292 of 2024 (Prem Pal Singh vs. Abhishek Kumar and 9 others) with the specific stand that once the cognizable offence has been made out it is the direction which has ought to have been given by learned Magistrate for directing concerned police station to lodge the F.I.R., while substantiating the grounds taken up while preferring criminal revision learned counsel for the petitioner submits that factual matrix of the matter reveals that it is the theft of near about four thousand bricks which can be ascertained only by way of conducting proper inquiry in pursuance to the F.I.R. if directed by concerned learned Magistrate since the offence can only be proved in pursuance to the inquiry which might recovered the stolen bricks and then prove guilty to the implicated persons as mentioned in the application under Section 175 (3) of B.N.S.S. itself.

4. While substantiating arguments raised by learned counsel for the petitioner, he relief upon the some of the judgements rendered by Hon'ble Apex Court i.e. case of Lalita Kumari vs. Government of U.P. and others, decided on 12.11.2013 by five Judges Bench of the Hon'ble Apex Court in Criminal Appeal No.1410 of 2011, 1267 of 2007, in Writ Petition (Criminal.) No.68 of 2008 along with Contempt Petition (C) No.26722 of 2008 in Writ Petition (Criminal) No.68 of 2008. It is also submitted that co-ordinate Bench of this Court also decided one case of Jafar Abbas Zaidi vs. State of U.P. and 4 others, after considering the judgements rendered by Hon'ble Apex Court, Division Bench of this Court where similar stand has been held as justified which has been argued by learned counsel for the petitioner that once the cognizable offence has been made out, it is the duty of the concerned Magistrate for passing specific direction for lodging the F.I.R. and the matter may be treated as State case.

5. Per contra, learned A.G.A. vehemently opposed the prayer as made in the petition by way of concluding stand taken up by learned counsel for the petitioner, while vehemently opposing the specific prayer for seeking direction in favour of the learned Magistrate to direct the concerned police station to register the case by way of lodging F.I.R., a report dated 28.07.2024 has been referred by learned A.G.A. which is appended as Annexure-2 available at page No.29 of the instant petition, wherein the specific report reveals that there is a dispute between the parties which is of civil nature, since the civil Suit No.534 of 2024 is still pending between the parties. Learned A.G.A. also submitted that so far regarding possession of the Plot No.192 is concerned, the same has also put under dispute in pursuance to rival contention received from both the parties.

6. After having rival submission extended by learned counsel for the parties, the specific incidence as highlighted by learned counsel for the petitioner with regard to stolen of four thousand bricks are concerned, the same has never been brought to the notice of learned court concerned at the time of submission of report by concerned Sub-Inspector, P.S. Kakore, District Bulandshahar on 28.07.2024. The application preferred at the behest of the petitioner under Section 175 (3) B.N.S.S., if carefully considered the same is having trail of incidence wherein an incidence mentioned under para 3 is of 15.11.2023 and subsequently a second incidence mentioned under para 4 is of 28.05.2024 and thereafter another one mentioned in para 5 is of 23.06.2024 and incident mentioned in para 6 is of 08.07.2024, meaning thereby the incidence mentioned under para 4 related to dated 28.05.2024 is specific in nature with regard to stolen of four thousand bricks but before that the incidence dated 15.11.2023 is also mentioned in application under Section 175 (3) of B.N.S.S. which is the prying most and top incidence which arises cause of action in favour of the petitioner for preferring an application in shape of information before the concerned police station and if not accepted or given any credence or heat thereupon the application under Section 175 (3) is quite maintainable, but unfortunately the incidence dated 15.11.2023, 28.05.2024, 23.06.2024 and 08.07.2024 has been collectively informed through application under Section 175 (3) dated 24.07.2024 itself. With regard to specific information for the specific incident, there is hardly any document available with the instant petition and as such, it is quite clear that by way of combining incidences occurred from 15.11.2023 to 08.07.2024 has been collectively informed through the application dated 24.07.2024, under Section 175 (3) of B.N.S.S.

7. The specific submission made by learned counsel for the petitioner that the cognizable offence has been made out in respect to the incidence dated 28.05.2024 cannot be treated separately by way of information at the time of entertaining application under Section 175 (3) dated 24.07.2024 by learned Magistrate concerned and the related incidence cannot be directed by the learned concerned Magistrate by way of treating some incidence as treated as complaint and some incidence directed to be registered F.I.R. before the concerned police station. These judgements relied upon by learned counsel for the petitioner is having material to be given highest regard by this Court but unfortunately the same are not applicable in the instant matter. The collective incidence narrated through one application cannot be ascertained and determined only by way of directing the concerned police station for lodging F.I.R. whereas the report which has been received from the concerned police station has been given credence by learned Magistrate and the matter is rightly directed to register as complaint case. No infirmity found in the revisional order as well and as such, instant petition is dismissed. Order Date :- 13.2.2025 Jitendra JITENDRA KUMAR PATEL High Court of Judicature at Allahabad