Tarannum v. Tara, whereby application under Section

1. Heard Sri Narendra Gupta, learned counsel for the revisionist as well as learned A.G.A. for the State of U.P.

2. In the light of proposed order, notice to opposite party no. 2 is dispensed with.

3. By means of present criminal revision under Section 438/442 of BNSS the revisionist has assailed the order dated 29.03.2025, passed by the Additional Civil Judge (Senior Division), Court No. 2/Additional Chief Judicial Magistrate, Sitapur in CIS No. 3403 of 2024 - Tarannum Vs. Tara, whereby application under Section 173(4) of BNSS moved by the opposite party no. 2 has been allowed.

4. Considering the urgency made by the revisionist, this Court had directed listing of the matter today.

5. It has been submitted by learned counsel for the revisionist that opposite party no. 2 had made a complaint before the Additional Civil Judge (Senior Division), Court No. 2/Additional Chief Judicial Magistrate, Sitapur stating that respondent no. 2 is the father-in-law of the complainant, and on 29.08.2024, who had sent her husband away for some work by respondent no. 2, he had approached her in her bedroom at 1.00PM and sexually assaulted her. It is when she raised alarm, he ran away, after threatening her not to disclose about the said incident. It is further stated that the private respondent again repeated the said incident brazenly one night when she was sleeping alongwith her children and husband, respondent no. 2 came with bad intention, the complainant woke up her husband and when he questioned respondent no. 2, he made some excuse. In these circumstances, the complaint was given by the complainant at the concerned Police Station and when no action was taken, she moved present complaint on 27.11.2024.

6. The trial Court duly considered the complaint as well as statement of the complainant and issued summons to the applicant. Learned counsel for the applicant while assailing the impugned order submits that the entire facts as stated in the complaint are false and misconceived, inasmuchas, son of the applicant himself has filed a suit for restitution on 03.09.2024 and submits that the first information report is counter blast to the said proceedings.

7. Apart from the above, it is submitted that during proceedings under Section 173(3) of BNSS, the Police report was called for and the Police has submitted a report after only recording statement of the son of the applicant and on both the occasions it is stated that the complainant could not be found and merely on account of the fact that proceedings of restitution have been moved, the Police has submitted a report stating that complaint appears to be false. It is in the aforesaid circumstances, it has been submitted that the order passed by the trial Court is illegal and arbitrary and deserves to be set aside.

8. Learned A.G.A. on the other hand has opposed the application and has submitted that at the stage of directing the Police to register FIR, it has only to be seen as to whether any cognizable offence is made out as per complaint filed by the complainant and also on the basis of material available at that stage.

9. In the present case, this Court has also perused the contents of the complaint, from which is clear that cognizable offence is made out and it would be incumbent upon the Police to have register the FIR, when the same was presented before them by means of complaint, but failure in registration of FIR has lead to filing of application under Section 173(3) of BNSS.

10. The power of Magistrate on presentation of application under Section 173(3) of BNSS has been duly dealt with in number of judgments of Hon'ble Supreme Court as well as High Courts. The Apex Court in the case of Devarapally Lakshminarayana Reddy Vs. V. Narayana Reddy, (1976) 3 SCC 252, has observed as under :- "13. It is well settled that when a Magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint, disclose the commission of an offence. This is clear from the use of the words "may take cognizance" which in the context in which they occur cannot be equated with "must take cognizance". The word "may" gives a discretion to the Magistrate in the matter. If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself." 11. From the aforesaid judgments it is clear that at the stage of directing the Police to register first information report, only material for consideration would be the complaint disclosing occurrence of cognizable offence. It is after due application of mind that the Magistrate after duly considering the facts as disclosed in the complaint and also as per material made available at that stage, the Magistrate applies its mind. In the present case, this Court finds that the Magistrate has duly considered the allegations levelled in the complaint and from which it is borne out that cognizable offence of sexual assault without consent of the prosecutrix has been primafacie made out.

12. It is at the subsequent stage of trial that veracity of the said material as well as all the defense which are available to the accused are liable to be considered. At the stage of 173(3) of BNSS, only inquiry of the Magistrate is limited and it is not the stage of testing veracity of the allegations.

13. Accordingly, this Court does not find any infirmity in the impugned order dated 29.03.2025 passed by the Additional Civil Judge (Senior Division), Court No. 2/Additional Chief Judicial Magistrate, Sitapur in CIS No. 3403 of 2024 - Tarannum Vs. Tara, directing registering of first information report.

14. For the reasons aforesaid, no interference is required in the impugned order. The present revision being devoid of merits is dismissed. Order Date :- 17.4.2025 A. Verma ANURAG VERMA High Court of Judicature at Allahabad, Lucknow Bench

1. Heard Sri Narendra Gupta, learned counsel for the revisionist as well as learned A.G.A. for the State of U.P.

2. In the light of proposed order, notice to opposite party no. 2 is dispensed with.

3. By means of present criminal revision under Section 438/442 of BNSS the revisionist has assailed the order dated 29.03.2025, passed by the Additional Civil Judge (Senior Division), Court No. 2/Additional Chief Judicial Magistrate, Sitapur in CIS No. 3403 of 2024 - Tarannum Vs. Tara, whereby application under Section 173(4) of BNSS moved by the opposite party no. 2 has been allowed.

4. Considering the urgency made by the revisionist, this Court had directed listing of the matter today.

5. It has been submitted by learned counsel for the revisionist that opposite party no. 2 had made a complaint before the Additional Civil Judge (Senior Division), Court No. 2/Additional Chief Judicial Magistrate, Sitapur stating that respondent no. 2 is the father-in-law of the complainant, and on 29.08.2024, who had sent her husband away for some work by respondent no. 2, he had approached her in her bedroom at 1.00PM and sexually assaulted her. It is when she raised alarm, he ran away, after threatening her not to disclose about the said incident. It is further stated that the private respondent again repeated the said incident brazenly one night when she was sleeping alongwith her children and husband, respondent no. 2 came with bad intention, the complainant woke up her husband and when he questioned respondent no. 2, he made some excuse. In these circumstances, the complaint was given by the complainant at the concerned Police Station and when no action was taken, she moved present complaint on 27.11.2024.

6. The trial Court duly considered the complaint as well as statement of the complainant and issued summons to the applicant. Learned counsel for the applicant while assailing the impugned order submits that the entire facts as stated in the complaint are false and misconceived, inasmuchas, son of the applicant himself has filed a suit for restitution on 03.09.2024 and submits that the first information report is counter blast to the said proceedings.

7. Apart from the above, it is submitted that during proceedings under Section 173(3) of BNSS, the Police report was called for and the Police has submitted a report after only recording statement of the son of the applicant and on both the occasions it is stated that the complainant could not be found and merely on account of the fact that proceedings of restitution have been moved, the Police has submitted a report stating that complaint appears to be false. It is in the aforesaid circumstances, it has been submitted that the order passed by the trial Court is illegal and arbitrary and deserves to be set aside.

8. Learned A.G.A. on the other hand has opposed the application and has submitted that at the stage of directing the Police to register FIR, it has only to be seen as to whether any cognizable offence is made out as per complaint filed by the complainant and also on the basis of material available at that stage.

9. In the present case, this Court has also perused the contents of the complaint, from which is clear that cognizable offence is made out and it would be incumbent upon the Police to have register the FIR, when the same was presented before them by means of complaint, but failure in registration of FIR has lead to filing of application under Section 173(3) of BNSS.

10. The power of Magistrate on presentation of application under Section 173(3) of BNSS has been duly dealt with in number of judgments of Hon'ble Supreme Court as well as High Courts. The Apex Court in the case of Devarapally Lakshminarayana Reddy Vs. V. Narayana Reddy, (1976) 3 SCC 252, has observed as under :- "13. It is well settled that when a Magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint, disclose the commission of an offence. This is clear from the use of the words "may take cognizance" which in the context in which they occur cannot be equated with "must take cognizance". The word "may" gives a discretion to the Magistrate in the matter. If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself." 11. From the aforesaid judgments it is clear that at the stage of directing the Police to register first information report, only material for consideration would be the complaint disclosing occurrence of cognizable offence. It is after due application of mind that the Magistrate after duly considering the facts as disclosed in the complaint and also as per material made available at that stage, the Magistrate applies its mind. In the present case, this Court finds that the Magistrate has duly considered the allegations levelled in the complaint and from which it is borne out that cognizable offence of sexual assault without consent of the prosecutrix has been primafacie made out.

12. It is at the subsequent stage of trial that veracity of the said material as well as all the defense which are available to the accused are liable to be considered. At the stage of 173(3) of BNSS, only inquiry of the Magistrate is limited and it is not the stage of testing veracity of the allegations.

13. Accordingly, this Court does not find any infirmity in the impugned order dated 29.03.2025 passed by the Additional Civil Judge (Senior Division), Court No. 2/Additional Chief Judicial Magistrate, Sitapur in CIS No. 3403 of 2024 - Tarannum Vs. Tara, directing registering of first information report.

14. For the reasons aforesaid, no interference is required in the impugned order. The present revision being devoid of merits is dismissed. Order Date :- 17.4.2025 A. Verma ANURAG VERMA High Court of Judicature at Allahabad, Lucknow Bench