Pankaj Yadav v. Manish Kumar and Others), under Section
Case Details
Neutral Citation No. - 2025:AHC:106798 Court No. - 71 Case :- APPLICATION U/S 528 BNSS No. - 15848 of 2025 Applicant :- Pankaj Yadav Opposite Party :- State Of U.P. And 4 Others Counsel for Applicant :- Daya Shanker Pandey Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J. 1. Heard learned counsel for the applicants, learned A.G.A. for the State and perused the record. 2. This application under Section - 528 BNSS has been preferred against order dated 28.11.2022, passed by learned Chief Judicial Magistrate, Gautam Buddh Nagar in Application No. 1050 of 2022 (Pankaj Yadav Vs. Manish Kumar and Others), under Section - 156(3) Cr.P.C., Police Station - Sector-63 Noida, District - Gautam Buddh Nagar. The order dated 05.03.2025, passed by learned Additional Sessions Judge, Court No.5, Gautam Buddh Nagar in Criminal Revision No. 77 of 2023 (Pankaj Yadav Vs. Manish Kumar and Others), is also being impugned.
Legal Reasoning
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 held 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. It was further held 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 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). 8. In the instant matter after considering the allegations made in the application under Section - 156 (3) Cr.P.C., learned Magistrate has observed that dispute between the parties is civil in nature and that dispute was regarding salary of opposite party Abhishek Khandelwal. The application filed by application under Section - 156(3) Cr.P.C. was dismissed by a reasoned order. Applicant has preferred criminal revision against that order and learned Revisional Court has also considered entire facts of the matter and position of law and revision was dismissed by a reasoned order dated 05.03.2025. Once the revision is dismissed against the order of Magistrate, in such circumstances the interference under Section - 528 BNSS can only be made in case when there is grave miscarriage of justice or abuse of the process of the courts or the required statutory procedure has not been complied with or there is failure of justice. In the instant matter, no such contingency is made out. Applying the principles referred above to the case on hand, no case for invocation of powers under Section - 528 BNSS is made out. The application under Section - 528 BNSS lacks merit and thus liable to be dismissed. 9. The application u/s 528 BNSS is hereby dismissed. Order Date :- 8.7.2025 / S Rawat Digitally signed by :- Digitally signed by :- SHOBHIT RAWAT SHOBHIT RAWAT High Court of Judicature at Allahabad High Court of Judicature at Allahabad
Arguments
3. It is submitted by learned counsel for the applicant that applicant has moved an application under Section - 156(3) Cr.P.C. against opposite party no.2 to 5, making several allegations. There is allegation that the private opposite party No. 2 and 3, who have worked in company of applicant, committed breach of trust and misused the data of the company of applicant. The opposite party No.2 and 3, along with opposite party No.4 and 5, have made a company and misused data of the company of applicant. Referring to allegations made in the application under Section – 156(3) Cr.P.C., it was submitted that a cognizable offence was made out and thus, investigation by police was necessary but learned C.J.M., Gautam Buddh Nagar has rejected the application filed by the applicant under Section - 156(3) Cr.P.C. vide impugned order dated 28.11.2022. Applicant has preferred a criminal revision against order dated 28.11.2022 but the revision has also been dismissed by the learned Additional Sessions Judge, Court No.5, Gautam Buddh Nagar vide impugned order dated 05.03.2025. It was stated that both the impugned orders are against facts and law and thus, liable to be quashed and that in the interest of justice a direction must be made to the police to register a case and to investigate the matter. 4. Learned A.G.A. has opposed the application and submitted that the application of applicant was rejected by a reasoned order by holding that dispute between the parties is civil in nature. It was stated that learned Revisional court has considered entire facts in detail and revision was dismissed by a reasoned order. 5. I have considered the rival submissions 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. The Magistrate is not 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. In case of case of Sukhwasi vs. State of U.P. 2007 (59) ACC 739, after