High Court · 2025

235655 of 2022 (Smt. Shipra Pandey v. Shashivendra Kumar Pandey), whereby application filed by applicant under Section 156(3) CrPC has been registered as a complaint case.

3. Learned counsel for the applicant submitted that marriage of applicant with opposite party no.2 has been taken place on

01.03.2012 and she was harassed by her husband and his family members on account of dowry. It was further alleged that on

04.09.2022 at about 09.00 AM, the opposite party nos.2 to 6 have thrown burning matchbox at the applicant and her son in order to kill them, however, they escaped. It was submitted that a cognizable offence was made out against the opposite party nos.2 to 6 and thus, on the application of applicant filed under Section 156(3) CrPC, a case for investigation by police was made out but by impugned order, learned Special CJM has declined to pass any order for investigation by Police and the application under Section 156(3) CrPC was registered as a complaint case. It was 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).

10. In the instant matter, it appears that the matter pertains to matrimonial dispute. So far the allegation that applicant have thrown burning match-box at the complainant is concerned, it appears that the complainant had not sustained any injury. In view of nature of accusations and aforesaid position of law, it can not be said that there has been any abuse of the process of the court or the impugned order suffers from any patent illegality or perversity. It can also not be said that the provisions of Section 482 CrPC are required to be invoked to secure ends of justice. Considering facts of the matter and position of law, no case for invoking powers under Section 482 CrPC is made out. The application under Section 482 CrPC lacks merit and thus liable to be dismissed.

11. Accordingly, the application under Section 482 CrPC is hereby dismissed. Order Date :- 25.4.2025 Rama Kant RAMA KANT High Court of Judicature at Allahabad

235655 of 2022 (Smt. Shipra Pandey v. Shashivendra Kumar Pandey), whereby application filed by applicant under Section 156(3) CrPC has been registered as a complaint case.

3. Learned counsel for the applicant submitted that marriage of applicant with opposite party no.2 has been taken place on

01.03.2012 and she was harassed by her husband and his family members on account of dowry. It was further alleged that on

04.09.2022 at about 09.00 AM, the opposite party nos.2 to 6 have thrown burning matchbox at the applicant and her son in order to kill them, however, they escaped. It was submitted that a cognizable offence was made out against the opposite party nos.2 to 6 and thus, on the application of applicant filed under Section 156(3) CrPC, a case for investigation by police was made out but by impugned order, learned Special CJM has declined to pass any order for investigation by Police and the application under Section 156(3) CrPC was registered as a complaint case. It was 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).

10. In the instant matter, it appears that the matter pertains to matrimonial dispute. So far the allegation that applicant have thrown burning match-box at the complainant is concerned, it appears that the complainant had not sustained any injury. In view of nature of accusations and aforesaid position of law, it can not be said that there has been any abuse of the process of the court or the impugned order suffers from any patent illegality or perversity. It can also not be said that the provisions of Section 482 CrPC are required to be invoked to secure ends of justice. Considering facts of the matter and position of law, no case for invoking powers under Section 482 CrPC is made out. The application under Section 482 CrPC lacks merit and thus liable to be dismissed.

11. Accordingly, the application under Section 482 CrPC is hereby dismissed. Order Date :- 25.4.2025 Rama Kant RAMA KANT High Court of Judicature at Allahabad