Raj Bahadur Patel v. Party

1. Mr. Dheeraj Kumar Tiwari, learned Counsel for the revisionist and learned A.G.A. for the State are present. No one is present on behalf of respondent nos. 2 to 5 today but a counter affidavit has been filed on their behalf.

2. It is submitted by the learned Counsel for the revisionist that on

03.10.2022, at about 1:00 o'clock, Shashikant Patel, opposite party no.2, entered his house and forcefully committed rape upon her 16 year old daughter on the gun point. On objection, opposite party no.2 hurled abuses and threatened her for dire consequences. Hearing the noise, the informant reached on the spot, caught him red handed and complained to his parents about the incident. Thereafter, Shashikant's father, brother and cousin reached the informant's house, hurled abuses and threatened the informant for dire consequence and took Shashikant Patel with them. Thereafter, he visited Police Station for registration of F.I.R. but no case was registered against him. On 05.11.2022, he sent a complaint by a registered post to the Senior Superintendent of Police, Prayagraj but no F.I.R. was registered. Thereafter, he filed an application under Section 156 (3) Cr.P.C., seeking direction for registration of F.I.R. but the learned Special Judge, POCSO Act, instead of directing the Police to register a case on that application, treated the same as a compliant case.

3. It is further submitted that a cognizable offence is made out as per the contents of the application and the Police could only do the investigation 2 CRLR No. 657 of 2023 as per the provisions of law. It is next submitted that before the said incident, Shashikant Patel has already committed the same offence with her daughter and the informant got an F.I.R. registered against him bearing Case Crime No. 10 of 2021, under Section 376, 313, 504, 506 I.P.C. and Section 3/4 D.P. Act, at P.S. Ghoorpur, District Prayagraj. Therefore, he prayed that, looking to the nature of the crime, the impugned order may be set-aside and the concerned Court may be directed to pass an order for registration of F.I.R. against the opposite party nos. 2 to 5.

4. Per contra, learned A.G.A. has submitted that the learned Trial Court has committed no illegality in passing the impugned order as the said application under Section 156(3) Cr.P.C. was filed with previous enmity. The present compliant was filed only to create pressure on the Court as the trial of the case previously filed bearing Case Crime No. 10 of 2021, under Section 376, 313, 504, 506 I.P.C. and Section 3/4 D.P. Act, at P.S. Ghoorpur, District Prayagraj is still pending. The learned Trial Court has rightly treated the application under Section 156(3) Cr.P.C. as a compliant case and the revisionist will get opportunity to get examined himself under Section 200 Cr.P.c. and his witnesses under Section 202 Cr.P.C., thus, this revision may be dismissed.

5. I have carefully considered the rival submissions of the parties and perused the record.

6. 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 3 CRLR No. 657 of 2023 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"?

7. 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 (supra) 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 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."

8. 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 4 CRLR No. 657 of 2023 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 (supra).

9. In the present case, the revisionist has filed an application under Section 156(3) Cr.P.C. before the learned Trial Court seeking direction for registration of a case against opposite party nos. 2 to 5 stating that on

03.10.2022, at about 1:00 o'clock, Shashikant Patel, opposite party no.2, entered his house and forcefully committed rape upon her 16 year old daughter on the gun point. On objection, opposite party no.2 hurled abuses and threatened her for dire consequences. Hearing the noise, the informant reached on the spot, caught him red handed and complained to his parents about the incident. Thereafter, Shashikant's father, brother and cousin reached the informant's house, hurled abuses and threatened the informant for dire consequence and took Shashikant Patel with them. It is relevant to mention that the informant has already got a case registered against the Shashikant Patel as Case Crime No. 10 of 2021, under Section 376, 313, 504, 506 I.P.C. and Section 3/4 D.P. Act, at P.S. Ghoorpur, District Prayagraj, which shows that there is a previous enmity between parties.

10. It is further relevant to mention here that the revisionist has mentioned in the application that he has visited the local Police regarding registration of F.I.R. and he also sent a letter to the Senior Superintendent of Police, Prayagraj by a registered post on 05.11.2022 but he has not filed a copy of the same. Thus, it cannot be said that the revisionist has approached the Senior Superintendent of Police, Prayagraj for registration of F.I.R.

11. It is settled law that the Magistrate is not bound to pass order for registration of F.I.R. in each and every application filed under Section 156(3) Cr.P.C. and he has power to treat the same as a compliant case. In the present case, the application of the revisionist has been treated as a complaint case and he will get every opportunity to examine himself under Section 200 Cr.P.C. and also to produce its witnesses under Section 5 CRLR No. 657 of 2023 202 Cr.P.C.

12. Considering the material of facts, it cannot be said that impugned order is suffering from any illegality, perversity or any other material irregularity.

13. Accordingly, the present revision is dismissed. October 14, 2025 Vijay (Chawan Prakash,J.) VIJAY KUMAR SAHU High Court of Judicature at Allahabad

1. Mr. Dheeraj Kumar Tiwari, learned Counsel for the revisionist and learned A.G.A. for the State are present. No one is present on behalf of respondent nos. 2 to 5 today but a counter affidavit has been filed on their behalf.

2. It is submitted by the learned Counsel for the revisionist that on

03.10.2022, at about 1:00 o'clock, Shashikant Patel, opposite party no.2, entered his house and forcefully committed rape upon her 16 year old daughter on the gun point. On objection, opposite party no.2 hurled abuses and threatened her for dire consequences. Hearing the noise, the informant reached on the spot, caught him red handed and complained to his parents about the incident. Thereafter, Shashikant's father, brother and cousin reached the informant's house, hurled abuses and threatened the informant for dire consequence and took Shashikant Patel with them. Thereafter, he visited Police Station for registration of F.I.R. but no case was registered against him. On 05.11.2022, he sent a complaint by a registered post to the Senior Superintendent of Police, Prayagraj but no F.I.R. was registered. Thereafter, he filed an application under Section 156 (3) Cr.P.C., seeking direction for registration of F.I.R. but the learned Special Judge, POCSO Act, instead of directing the Police to register a case on that application, treated the same as a compliant case.

3. It is further submitted that a cognizable offence is made out as per the contents of the application and the Police could only do the investigation 2 CRLR No. 657 of 2023 as per the provisions of law. It is next submitted that before the said incident, Shashikant Patel has already committed the same offence with her daughter and the informant got an F.I.R. registered against him bearing Case Crime No. 10 of 2021, under Section 376, 313, 504, 506 I.P.C. and Section 3/4 D.P. Act, at P.S. Ghoorpur, District Prayagraj. Therefore, he prayed that, looking to the nature of the crime, the impugned order may be set-aside and the concerned Court may be directed to pass an order for registration of F.I.R. against the opposite party nos. 2 to 5.

4. Per contra, learned A.G.A. has submitted that the learned Trial Court has committed no illegality in passing the impugned order as the said application under Section 156(3) Cr.P.C. was filed with previous enmity. The present compliant was filed only to create pressure on the Court as the trial of the case previously filed bearing Case Crime No. 10 of 2021, under Section 376, 313, 504, 506 I.P.C. and Section 3/4 D.P. Act, at P.S. Ghoorpur, District Prayagraj is still pending. The learned Trial Court has rightly treated the application under Section 156(3) Cr.P.C. as a compliant case and the revisionist will get opportunity to get examined himself under Section 200 Cr.P.c. and his witnesses under Section 202 Cr.P.C., thus, this revision may be dismissed.

5. I have carefully considered the rival submissions of the parties and perused the record.

6. 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 3 CRLR No. 657 of 2023 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"?

7. 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 (supra) 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 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."

8. 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 4 CRLR No. 657 of 2023 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 (supra).

9. In the present case, the revisionist has filed an application under Section 156(3) Cr.P.C. before the learned Trial Court seeking direction for registration of a case against opposite party nos. 2 to 5 stating that on

03.10.2022, at about 1:00 o'clock, Shashikant Patel, opposite party no.2, entered his house and forcefully committed rape upon her 16 year old daughter on the gun point. On objection, opposite party no.2 hurled abuses and threatened her for dire consequences. Hearing the noise, the informant reached on the spot, caught him red handed and complained to his parents about the incident. Thereafter, Shashikant's father, brother and cousin reached the informant's house, hurled abuses and threatened the informant for dire consequence and took Shashikant Patel with them. It is relevant to mention that the informant has already got a case registered against the Shashikant Patel as Case Crime No. 10 of 2021, under Section 376, 313, 504, 506 I.P.C. and Section 3/4 D.P. Act, at P.S. Ghoorpur, District Prayagraj, which shows that there is a previous enmity between parties.

10. It is further relevant to mention here that the revisionist has mentioned in the application that he has visited the local Police regarding registration of F.I.R. and he also sent a letter to the Senior Superintendent of Police, Prayagraj by a registered post on 05.11.2022 but he has not filed a copy of the same. Thus, it cannot be said that the revisionist has approached the Senior Superintendent of Police, Prayagraj for registration of F.I.R.

11. It is settled law that the Magistrate is not bound to pass order for registration of F.I.R. in each and every application filed under Section 156(3) Cr.P.C. and he has power to treat the same as a compliant case. In the present case, the application of the revisionist has been treated as a complaint case and he will get every opportunity to examine himself under Section 200 Cr.P.C. and also to produce its witnesses under Section 5 CRLR No. 657 of 2023 202 Cr.P.C.

12. Considering the material of facts, it cannot be said that impugned order is suffering from any illegality, perversity or any other material irregularity.

13. Accordingly, the present revision is dismissed. October 14, 2025 Vijay (Chawan Prakash,J.) VIJAY KUMAR SAHU High Court of Judicature at Allahabad