VIKASversusState of U.P. AND ANOTHER

              HIGH COURT OF JUDICATURE AT ALLAHABAD

                   CRIMINAL APPEAL No. - 11349 of 2024

Vikas
                                                               .....Appellant(s)
                                      Versus
State of U.P. and Another
                                                            .....Respondent(s)

Counsel for Appellant(s)          :   Ajeet Shukla, Lakshmi Devi
Counsel for Respondent(s)         :   G.A., Harish Kumar Srivastava, Kumar
                                      Ankit Srivastava

Court No. - 51
                          HON'BLE MADAN PAL SINGH, J.

1. Heard learned counsel for the appellant, learned counsel for opposite party
no.2 and learned A.G.A. for the State.

2. This application has been filed for quashing the order dated 10th October,
2024 passed by the Special Judge (S.C./S.T. Act), Jaunpur in Criminal Misc.
Case No. 346 of 2024 (Vikash vs. Dr. Santosh Kumar Yadav & Others), under
Section 173 B.N.S.S. Police Station-Line Bazar, District-Jaunpur, whereby
application filed by appellant under Section 173 (4) of B.N.S.S. [old Section
156(3) Cr.P.C.] has been rejected.

3. It has been argued by learned counsel for applicant that appellant has
submitted an application under Section 173 (4) of B.N.S.S. [old Section
156(3) Cr.P.C.] against opposite party no. 2, making several allegations
including the commission of assault and abuse by using caste indicated words
upon him by opposite party no.2, which constitute prima facie a cognizable
offence, but learned trial court has not considered the entire facts and law in
correct perspective and the application of the applicant under Section 173 (4)
of B.N.S.S. [old Section 156(3) Cr.P.C.] has been rejected vide impugned
order dated 10th October, 2024 without assigning appropriate reasons. It was
further argued that the impugned order is against facts and law and thus,
liable to be set aside.

4. Learned A.G.A. has opposed the application and argued that learned trial
court has assigned appropriate reasons for rejection of application under
Section 156(3) Cr.P.C. and that no illegality could be pointed out in the
impugned orders.

5. I have considered the facts and circumstances of the case, submission
made by the learned counsel for the parties and perused the material
available on record including the impugned order.
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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 cognizable 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. reported in 2007 (59) ACC 739. In the
case of Smt. Masuman vs. State of U.P. & others reported in 2007 (1) ALJ
221 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 vs. State of U.P.
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. From the perusal of the impugned judgment order passed by the trial court
rejecting the application made by the appellant under Section 173 (4) of
B.N.S.S. [old Section 156(3) Cr.P.C.] as well as from the perusal of the
application under Section 156 (3) Cr.P.C./173 (4) B.N.S.S., it appears that no
prima facie case is made out against the opposite party no.2, as there is no
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                                 3

enmity or rivalry between the appellant and opposite party no.2. The opposite
party no.2 is only a Doctor who conducted the operation of the father of the
appellant in which during his treatment he expired. There was no occasion for
the opposite party no.2 to beat and abuse the appellant.

9. As such, 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).

10. Thus, though, in appropriate cases, learned Magistrate can make a
direction for police to investigate the matter but this jurisdiction has to be
exercised cautiously and such orders cannot be passed in a routine manner.

11. Keeping in view the legal position and in view of the facts and
circumstances of the present case and also considering nature of allegations
made in the application under Section 173 (4) of B.N.S.S. [old Section 156(3)
Cr.P.C.], rejection of application under Section 173 (4) of B.N.S.S. [old
Section 156(3) Cr.P.C.] . by learned trial court vide impugned order dated 10th
October, 2024, cannot be said against the provisions of law or suffering from
any perversity or illegality. The trial court has also considered entire relevant
facts and has assigned appropriate reasons for dismissal of revision, while
passing impugned order.

12. This Court can also not loose sight of the Three Judges Bench judgment
of the Hon'ble Supreme Court in the Case of Aleque Padamsee v. Union of
India (AIR 2007 SC 684), the Full Bench of this Court in Father Thomas v.
State of Uttar Pradesh, passed in Criminal Revision No. 1640 of 2001
decided on 22.12.2010, wherein it has been held that even an application
under Section 156(3) Cr.P.C. (now Section 173(4) BNSS) has been rejected,
the remedy available to the appellant is to file a complaint case before the
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                                    court concerned under Section 190 (1) (a) read with Section 200 of Cr.P.C.
                                    [now Section 210(1)(a) read with Section 223 of BNSS.]

                                    13. In view of the above settled position of law, the proper remedy available to
                                    the appellant is to file complaint case under Section 210(1)(b) read with
                                    Section 223 of BNSS.

                                    14. Keeping in view the facts and circumstances of the case and the
                                    allegations made by the complainant, the order passed by the trial court is
                                    found to be correct in the eyes of law. No interference is warranted in the
                                    present case.

                                    15. Accordingly, the Criminal appeal is dismissed.

                                    May 15, 2026
                                    Sushil/-
                                                                                             (Madan Pal Singh,J.)




Digitally signed by :-
SUSHIL KUMAR SINGH
High Court of Judicature at Allahabad