RAKESH SINGH AND 4 OTHERSversusSTATE OF U.P. AND 3 OTHERS

         HIGH COURT OF JUDICATURE AT ALLAHABAD
           CRIMINAL MISC. WRIT PETITION No. - 4245 of 2026

Rakesh Singh And 4 Others
                                                            .....Petitioner(s)
                                  Versus

State Of U.P. And 3 Others
                                                         .....Respondent(s)

Counsel for Petitioner(s)                          :    Tejas Singh
Counsel for Respondent(s)                          :    G.A.

Court No. - 47
                 HON'BLE RAJEEV MISRA, J.
                 HON'BLE LAKSHMI KANT SHUKLA, J.

1. Heard Mr. Ajay Kumar Singh, the learned Senior Counsel assisted by
Mr. Tejas Singh, the learned counsel for petitioners, the learned AGA
representing State-respondents 1, 2 & 3 and Mr. Yogesh Mishra, the
learned counsel representing first informant/respondent 4.

2. Perused the record.

3. Petitioners Rakesh Singh and 4 others have approached this Court by
means of present Criminal Misc. Writ Petition challenging the FIR dated
02.02.2026 lodged by first informant/respondent 4 Vimal Kumar Singh
and registered as Case Crime No. 0022/2026 (State of U.P. Vs. Ramasare
Singh and others), under sections 191(2), 351(2), 352 and 324(4) BNS,
2023, P.S. Chitaipur, District Varanasi.

4. Present writ petition is a classic example of the war of wits between
parties. Before proceeding to consider the submissions urged by the
learned Senior Counsel in support of present writ petition as well as the
objections raised on behalf of respondents in opposition to present writ
petition, necessary facts on the basis of which allegations made in the FIR
can be appreciated in law need to be briefly stated.

5. It transpires from record that the land in dispute was initially recorded
in the name of Ram Surat, the original tenure holder. Ram Surat, during
his life time, executed a gift deed dated 13.12.1954 whereby he gave life
interest to his widowed daughter-in-law Bituna Devi (widow of Sheonath,
the predeceased son of Ram Surat), 2/3rd share was given in favour of
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Musafir, Vijai and Nanku whereas 1/3rd share was given to the sons of
Ghunra Devi daughter of Ram Surat. Some persons, who fall within the
genealogical table, claimed their right in the land in dispute, on the basis
of an unregistered will dated 08.02.2003 alleged to have been executed by
Bituna Devi in their favour.

6. The village, where the land in dispute is situate, was brought under
consolidation operations by means of a Gazette Notification published
Under Section 4(2) of the U.P. Consolidation of Holdings Act, 1953.

7. In the basic year records, the name of Bituna Devi was recorded over
the land in dispute. Bituna Devi died on 28.03.2003. Thereafter,
objections under section 9-A(2) of the U.P. Consolidation of Holding Act,
1953 were filed by different persons claiming right, title and interest in
the estate of Bituna Devi. The said objections came to be dismissed by the
Consolidation Officer for want of prosecution vide order dated
02.04.2005.

8. Feeling aggrieved by the order dated 02.04.2005 passed by
Consolidation Officer a restoration application was filed by one Rakesh
Kumar Singh. The said restoration application came to be allowed by the
Consolidation Officer, Final Record II, Varanasi vide order dated
26.03.2015. Surprisingly while allowing the aforementioned restoration
application, Consolidation Officer also determined share of the parties
which has been elaborated in the order dated 26.03.2015 itself. Upto this
stage no right, title or interest of the first informant/respondent 4 Vimal
Kumar Singh in the land in dispute stood recognized.

9. Against above order dated 26.03.2015, Jarawati Devi wife of Musafir
filed a restoration application. The said restoration application came to be
allowed by Consolidation Officer on the same day i.e. 08.06.2016.
According to learned Senior counsel for petitioner, the said order was
passed in complete violation of the principles of natural justice as no
notice or opportunity of hearing was extended by Consolidation Officer to
the affected tenure holders before passing the said order dated
08.06.2016. Vide another order dated 22.06.2016, Consolidation Officer
also set aside earlier orders dated 03.10.2015, 02.11.2015 and 24.05.2016
passed by Consolidation Officer, whereby compromise entered into by the
parties in terms of Rule 109 of the U.P. Consolidation of Holdings Rules
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                              3


had been accepted and pursuant to which names of present petitioners
came to be recorded in the consolidation records in respect of the land in
dispute.

10. Feeling aggrieved by above orders dated 08.06.2016 petitioners filed a
revision before Deputy Director of Consolidation, Varanasi in terms of
Section 48(3) of the U.P. Consolidation of Holdings Act. The said
revision came to be dismissed by the Deputy Director of Consolidation,
Varanasi vide order dated 19.08.2016.

11. Feeling aggrieved by the above order dated 19.08.2016, petitioners
approached this Court by filing Writ-B No. 45669 of 2016 (Vijai Vs.
Deputy Director of Consolidation, Varanasi and 5 others). Aforesaid writ
petition came to be allowed by this Court vide order dated 29.09.2016.

12. Another writ petition being Writ B No. 45671 of 2016 (Vijai Vs.
Deputy Director of Consolidation, Varanasi and 5 others) was filed
challenging the order dated 22.06.2016 passed by the Consolidation
Officer, Varanasi recalling the earlier order dated 03.10.2015, 02.11.2015
and 24.05.2016 passed in proceeding under Rule 109 of the U.P.
Consolidation of Holdings Rules. The said writ petition also came to be
allowed by this Court vide order dated 29.09.2016.

13. As a consequence of above order dated 29.09.2016 passed by this
Court the matter stood remanded before Consolidation Officer for
decision afresh.

14. Upon remand Consolidation Officer again allowed the restoration
application filed by Jarawati Devi vide order dated 16.09.2017. In view of
above order dated 16.09.2017, proceedings under Rule 109 of U.P.
Consolidation of Holdings Rules initiated by the parties also came to be
negated vide order dated 08.12.2017.

15. Feeling aggrieved by above order dated 16.09.2017, petitioners filed a
revision before Deputy Director of Consolidation, Varanasi which
revision also came to be dismissed vide order dated 07.11.2017. By the
said order, parties were directed to appear before Consolidation Officer
for decision of their claims on merits.

16. Thus challenging the above order dated 07.11.2017, petitioners
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                              4


approached this Court by means of Writ B No. 5086 of 2018 (Rakesh
and 4 others Vs. Deputy Director of Consolidation and 3 others). In
the aforementioned writ petition an interim order dated 18.09.2018 was
passed by this Court. Even otherwise aforesaid order is on record at page
62 of the paper book. For ready reference the same is extracted herein
under:-

     "Supplementary affidavit filed today by learned counsel for
     the petitioners is taken on record.

     Heard learned counsel for the petitioners and Sri Rajeshwar
     Singh, Advocate on behalf of respondent No. 3.

     The contention of learned counsel for the petitioners is that
     after remand by this Court vide order dated 29.09.2016, the
     restoration application filed by respondent No. 3 was decided
     without hearing the petitioners. The petitioners filed the
     revision against that order in which specific ground has been
     mentioned to the effect that the order is ex-parte has been
     passed on 16.09.2017 of that date Presiding Officer was not
     available. The said grounds has taken in the memo of
     revision has not been considered by the D.D.C., while passing
     the impugned order.

     Matter requires consideration.

     Learned Standing Counsel has accepted the notice on behalf
     of respondent Nos. 1 and 2.
     Sri Rajeshwar Singh, Advocate has accepted the notice on
     behalf of respondent No. 3.
     Issue notice to respondent No. 4 returnable at an early date.
     Step be taken within a week by registered/speed post.

     All the respondents are directed to file counter affidavit
     within a month.

     List this petition for admission/final disposal in the week
     commencing 12.11.2018.

     Till the next date of listing further proceeding pending before
     the Consolidation Officer shall remain stayed. "
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                                5


17. Mr. A.K. Singh, the learned Senior counsel for petitioners in
challenge to the impugned FIR submits that in view of the facts as have
now emerged on record, the criminal prosecution of petitioners pursuant
to the impugned FIR cannot be sustained. According to the learned Senior
counsel, the dispute between the parties is basically a civil dispute, which
has been dragged into criminal litigation. It is an admitted case of first
informant that petitioners are agitating their right, title and interest in the
land in dispute. In this regard, the last orders dated 16.09.2017 and
18.12.2017 were passed by the DDC, Varanasi. Vide order dated
16.09.2017, the DDC, Varanasi dismissed the revision filed by petitioners
against the order dated 16.09.2017, whereby the restoration application
filed by Jarawati Devi seeking recall of the order dated 26.03.2015 was
allowed. The DDC, Varanasi, vide order dated 16.09.2017 further
remanded the matter before the Consolidation Officer for decision afresh.
The High Court, vide interim order dated 18.09.2018 stayed further
proceedings upon remand.

18. According to the learned Senior counsel, in case, first
informant/respondent-4 had been in actual physical possession then the
impugned FIR would not have been lodged in the year, 2021. This clearly
shows false implication of petitioners.

19. Learned Senior counsel for petitioners has further submitted that first
informant/respondent-4 never contested any proceeding before the
Consolidation Courts. In fact, respondent-4 had filed an impleadment
application seeking impleadment in the consolidation proceedings but the
same was rejected by the consolidation officer vide order dated
30.01.2017. Respondent-4 is claiming right, title and interest in the land
in dispute simply on the basis of an order passed by Niab Tehsildar in
proceedings under Section 34 of the U.P. Land Revenue Act. Since
mutation proceedings are summary proceedings, therefore, they do not
create any right, title or interest and there being nothing on record to
establish the title of first informant/respondent-4, the actual possession of
petitioners at the behest of first informant/respondent-4 cannot be
disputed. Apart from above, it is not clear as to how first
informant/respondent-4 came in possession over the land in dispute.
Merely, on the basis of an order of mutation, the possession of
respondent-4 could not take place.
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20. It is lastly contended by the learned Senior counsel for petitioners that
the right of petitioners in the land in dispute was recognized, vide order
dated 26.03.2015 passed in consolidation proceeding and thereafter, vide
orders dated 03.10.2015, 02.12.2015 and 24.05.2016 passed in
proceedings under Rule 109 of U.P.C.H. Act. Even if the said orders
stand recalled but on account of the interim order dated 18.09.2018
passed by this Court in the writ petition filed by petitioners before this
Court and quoted above, , the earlier position shall stand revived.Learned
Senior Counsel for petitioners has then referred to the judgement of
Supreme Court in Shree Chamundi Mopeds Ltd Vs. Church of South
India Trust Association CSI Cinod Secretariat, Madras, (1992) 3 SCC 1
and on basis thereof he would submit that since an interim order staying
the consequence of impugned order has already been passed by this Court
therefore the position occurring prior to the order impugned in the writ
petition filed by petitioners shall stand revived.

21. On the above conspectus, the learned Senior counsel for petitioners
would thus submit that the impugned FIR is liable to be quashed by this
Court.

22. Per contra, the learned A.G.A. for State-respondents 1, 2 & 3 and
Mr. Yogesh Mishra, the learned counsel representing first
informant/respondent 4 have vehemently opposed the present writ
petition. Learned A.G.A. contends that since upon perusal of impugned
FIR, commission of a cognizable offence is clearly disclosed, therefore,
no interference is warranted by this Court in present writ petition.

23. On the other hand, Mr. Yogesh Mishra, the learned counsel
representing first informant/respondent 4 has also opposed the present
writ petition. Apart from adopting the submissions urged by the learned
A.G.A. in opposition to present writ petition, it is contended by the
learned counsel representing first informant-respondent-4 that in view of
the facts and circumstances as have now crystallized on record,
petitioners cannot claim any right to possession over the land in dispute.
As such, no illegality can be attached to the impugned FIR. He further
contends that on date, the matter is yet to be finally decided by the
Consolidation Courts regarding the right, title and interest of petitioners in
the land in dispute. Secondly, the claim of petitioners in the land in
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                               7


dispute was recognized under orders dated 03.10.2015, 02.11.2015 and
24.05.2016 passed in compromise proceedings under Rule 109 of the U.P.
Consolidation Rules. The said orders have been recalled by the
Consolidation Officer and the order of Consolidation Officer has been
approved by the DDC, Varanasi, vide order dated 08.12.2017. In the writ
petition filed by petitioners challenging the order dated 16.09.2017, the
order dated 08.12.2017 has not been impugned. Apart from above, vide
order dated 16.09.2017, the DDC, Varanasi has upheld the order of
Consolidation Officer recalling the earlier order dated 02.04.2005 and
further remanded the matter to the Consolidation Officer for adjudication
on merits. The High Court, vide interim order dated 18.09.2018 has only
stayed the direction remanding the matter. As such, no benefit can be
derived by the petitioners from the ratio laid down by Apex Court in the
case of Shree Chamundi Mopeds Ltd. (Supra). Learned counsel
representing first informant-respondent-4 has then placed the Khatauni of
1428-1433F, copy of which is on record at page 65 of the paper book. He
has also produced the copy of Khasra, which also shows the possession of
first informant/respondent-4 and others. On the bedrock of aforesaid
documents, it is thus contended by the learned counsel representing first
informant-respondent-4 that since first informant-respondent-4 and others
are the recorded tenure holders of the land in dispute and also in
possession as per the document of title (Khatauni) as well as the
document of possession (Khasra), therefore, petitioners, who are claiming
right, title and interest in the land in dispute shall be prospective tenure
holders of the land in case their claim is accepted. But simply on the basis
of same, they cannot interfere with the possession of first
informant/respondent-4 till their right in the land in dispute is recognized
in law. He thus contends that in view of above, the criminal prosecution
of petitioners is neither malicious nor illegal. As such, no interference is
warranted by this Court in present writ petition.

23. 15. It may be noted here that the village where the land in dispute is
situate was de-notified for the purpose of consolidation by means of a
Gazette Notification issued by the State Government in exercise of
jurisdiction under section 52 of the U.P. Consolidation of Holding Act,
1953. On account of above, the records were transferred from the
Consolidation Authority to the Revenue Authority. Bituna Devi died on
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                                8


28.3.2023 Thereafter, the name of first informant/respondent-4 came to be
recorded in the Revenue Record regarding the land in dispute vide order
dated 28.5.2003 passed by the Naib Tehsildar in proceedings under
Section 34 of the U.P. Land Revenue Act. In the current Khatauni of
1428F to 1433F, copy of which has been brought on record as Annexure 9
to the writ petition, the names of Mr. Vimal Kumar Singh is duly
recorded in the column of the tenure holder i.e. Column 2 of the Khatauni
which entry occurs at page 66 of the paper book.

24. Having heard, Mr. Ajay Kumar Singh, the learned Senior Counsel for
petitioners, the learned AGA for State-respondents 1, 2 & 3 , Mr. Yogesh
Mishra, the learned counsel representing first informant/respondent-4 and
upon perusal of record, this Court finds that on date, petitioners are not
the recorded tenure holders of the land in dispute. The right, title and
interest of petitioners in the land in dispute is yet to be adjudicated by the
Consolidation Courts. By means of the interim order dated 18.09.2018
passed by this Court and having relied upon by the learned Senior counsel
for petitioners, no benefit can be derived by the petitioners as vide
aforesaid order dated 18.09.2018 (Annexure-7 to the writ petition), this
Court has only observed that further proceedings before the Consolidation
Officer pursuant to the order of remand passed by the DDC, Varanasi
shall remain stayed.

25. Learned Senior counsel for petitioners could not dislodge the
submissions urged by the learned counsel representing first informant-
respondent-4 to the effect that the village, where the land in dispute is
situate was de-notified for the purpose of consolidation. However, in the
revenue records, as they exist today, the name of first
informant/respondent-4 is duly recorded. The same is evident from the
Khatauni of 1428-1433 F, copy of which is on record as Annexure-9 to
the writ petition. Learned counsel representing first informant/respondent-
4 has also produced the copy of Khatauni of 1428-1433 F as well as the
Khasra. In the aforesaid Khasra, first informant/respondent-4 along with
others are shown in possession. It may be noticed here that while
Khatauni is the document of title, Khasra is the document of possession. It
is thus evident that first informant/respondent-4 is not only the recorded
tenure holder but also in possession of the land in dispute. In view of
above, simply on the ground that the petitioners are claiming right, title
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                               9


and interest in the land in dispute and also bona-fidely agitating the same
shall by itself not create a right in favour of petitioners. The judgment of
Supreme Court in Shree Chamundi Mopeds Ltd. (Supra), relied upon by
the learned Senior counsel for petitioners is also of no help to petitioners
as the order of DDC, Varanasi in the writ petition wherein an interim
order dated 18.09.2018 has been passed is an order of remand and the
High Court vide above order dated 18.09.2018 has only stayed further
proceedings upon remand. Apart from above, the claim of petitioners is
founded on an order passed by the Additional Consolidation Officer in
compromise proceedings under Rule 109 of the UP Consolidation of
Holdings Rules. The orders passed in proceedings under Rule 109 of
the UP Consolidation of Holdings Rules have been called, vide order
dated 08.12.2017. There is no interim order passed by the High Court
staying the effect and operation of the order dated 08.12.2017. As such,
the submissions urged by the learned Senior counsel in support of present
writ petition do not create any dent in the impugned FIR nor on the basis
of same, it can be conclusively concluded that the criminal prosecution of
petitioners is either malicious or an abuse of the process of Court or
illegal.. Since a prima-facie case is made out, therefore, no interference is
warranted by this Court in present writ petition.

26. It was also contended by the learned senior counsel that the impugned
FIR has been registered pursuant to an order passed by the jurisdictional
Magistrate in exercise of jurisdiction under Section 173 (4) BNSS i.e. 156
(3) Cr.P.C. According to the learned senior counsel, even though pursuant
to the order passed by the jurisdictional Magistrate directing therein that
an F.I.R. be registered and the same be investigated, and the
consequential FIR has been registered yet thereafter can be examined by
this Court in exercise of jurisdiction under Article 226 of the Constitution
of India, this Court can examine the veracity of the order passed by the
jurisdictional Magistrate. In support of above submission, he has relied
upon the judgment of Supreme Court in Om Prakash Ambadkar Vs.
State of Maharashtra and Others, (2026) 2 SCC 622. Since paragraphs
2, 3, 10, 11, 12, 13, 14, 21, 22, 23, 24, 25, 26 & 27 of the aforesaid report
are relevant qua the submissions urged by the learned senior counsel for
petitioner, therefore, the same are reproduced herein below:-

“2. This appeal arises from the impugned common judgment and order
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                             10


passed by the High Court of Judicature at Bombay, Nagpur Bench,
Nagpur dated 16-10-2019 [Om Prakash Ambadkar v. State of
Maharashtra, 2019 SCC OnLine Bom 13471] in Criminal Application
No. 33/2012 by which the High Court rejected the application filed by
the appellant herein under Section 482 of Code of the Criminal
Procedure, 1973 (hereinafter referred to as “CrPC”) and thereby
affirmed the order passed by the Judicial Magistrate First Class, Digras
under Section 156(3)CrPC directing the police authorities to register the
FIR against the appellant herein for the offence punishable under
Sections 323, 294, 500, 504 and 506, respectively, of the Penal Code,
1860 (for short “IPC”).

3. It appears from the materials on record that the original complainant
preferred an application under Section 156(3)CrPC in the Court of
Judicial Magistrate First Class, Digras praying that the police
authorities be directed to register his FIR for the offences enumerated
above.

10. Ordinarily, Section 156(3)CrPC is invoked by the complainant when
the police authorities decline to register a first information report. In
such circumstances, a private complaint may be made in the Court of
the Judicial Magistrate and the complainant may pray that police
investigation be ordered under Section 156(3)CrPC. However, it is the
discretion of the Magistrate concerned whether to order police
investigation under Section 156(3)CrPC or take cognizance upon the
complaint and issue process or dismiss the complaint under Section
203CrPC.

11. Over a period of time and in view of many decisions of this Court, if
the officer in charge of the police station concerned for some reasons
declines to register the FIR, then the law has left it open for the
complainant to file an appropriate application before the Magistrate
and pray for police investigation. Once an order is passed for police
investigation under Section 156(3)CrPC, then it becomes a police case.
At the end of the investigation the police may either file a charge-sheet
or file an appropriate closure report.

12. However, what is important to observe is that whenever any
application is filed by the complainant before the Court of Judicial
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                             11


Magistrate seeking police investigation under Section 156(3)CrPC, it is
the duty of the Magistrate concerned to apply his mind for the purpose
of ascertaining whether the allegations levelled in the complaint
constitute any cognizable offence or not. In other words, the Magistrate
may not undertake the exercise to ascertain whether the complaint is
false or otherwise, however, the Magistrate is obliged before he
proceeds to pass an order for police investigation to closely consider
whether the necessary ingredients to constitute the alleged offence are
borne out on plain reading of the complaint.

13. In the case on hand, it appears that the Magistrate passed an order
directing police investigation mechanically and without ascertaining
whether the allegations levelled disclose commission of any offence or
not.

14. It is the case of the complainant that the appellant herein committed
offence punishable under Section 294IPC. The Magistrate very
promptly accepted this contention without ascertaining if the necessary
ingredients required to constitute the offence were disclosed in the
complaint or not. In our view, even if all the allegations as levelled in
the complaint are believed to be true, none of the ingredients to
constitute the offence punishable under Section 294IPC could be said to
be borne out.

21. We fail to understand how the Magistrate could have directed the
police to investigate into the offence of defamation punishable under
Section 500IPC. We are at a loss to understand as to why this aspect
was not looked into even by the High Court.

22. The aforesaid reflects the mechanical manner in which the order
came to be passed for police investigation under Section 156(3)CrPC. It
was expected of the High Court to look into all these relevant aspects
before rejecting the petition filed by the appellant herein under Section
482CrPC.

23. The allegations as regards simple hurt also do not inspire any
confidence.

24. This Court in a plethora of its decisions, more particularly in
Ramdev Food Products (P) Ltd. v. State of Gujarat [Ramdev Food
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                             12


Products (P) Ltd. v. State of Gujarat, (2015) 6 SCC 439 : (2015) 3 SCC
(Cri) 192] , has laid emphasis on the fact that the directions under
Section 156(3) should be issued only after application of mind by the
Magistrate. Para 22 of the said decision reads thus: (SCC p. 456)

“22. Thus, we answer the first question by holding that:

22.1. The direction under Section 156(3) is to be issued, only after
application of mind by the Magistrate. When the Magistrate does not
take cognizance and does not find it necessary to postpone issuance of
process and finds a case made out to proceed forthwith, direction
under the said provision is issued. In other words, where on account
of credibility of information available, or weighing the interest of
justice it is considered appropriate to straightaway direct
investigation, such a direction is issued.

22.2. The cases where the Magistrate takes cognizance and postpones
issuance of process are cases where the Magistrate has yet to
determine “existence of sufficient ground to proceed”. Category of
cases falling under para 120.6 in Lalita Kumari [Lalita Kumari v. State
of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] may fall under
Section 202.

22.3. Subject to these broad guidelines available from the scheme of
the Code, exercise of discretion by the Magistrate is guided by
interest of justice from case to case.”

25. Thus, there are prerequisites to be followed by the complainant
before approaching the Magistrate under Section 156(3)CrPC which
is a discretionary remedy as the provision proceeds with the word
“may”. The Magistrate is required to exercise his mind while doing
so. He should pass orders only if he is satisfied that the information
reveals commission of cognizable offences and also about the
necessity of police investigation for digging out of evidence neither in
possession of the complainant nor can be procured without the
assistance of the police.

26. It is, thus, not necessary that in every case where a complaint has
been filed under Section 200CrPC the Magistrate should direct the
police to investigate the crime merely because an application has also
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                             13


been filed under Section 156(3)CrPC even though the evidence to be
led by the complainant is in his possession or can be produced by
summoning witnesses, with the assistance of the court or otherwise.
The issue of jurisdiction also becomes important at that stage and
cannot be ignored.

27. In fact, the Magistrate ought to direct investigation by the police
only where the assistance of the investigating agency is necessary and
the court feels that the cause of justice is likely to suffer in the
absence of investigation by the police. The Magistrate is not expected
to mechanically direct investigation by the police without first
examining whether in the facts and circumstances of the case,
investigation by the State machinery is actually required or not. If the
allegations made in the complaint are simple, where the court can
straightaway proceed to conduct the trial, the Magistrate is expected
to record evidence and proceed further in the matter, instead of
passing the buck to the police under Section 156(3)CrPC. Of course,
if the allegations made in the complaint require complex and
complicated investigation which cannot be undertaken without active
assistance and expertise of the State machinery, it would only be
appropriate for the Magistrate to direct investigation by the police
authorities. The Magistrate is, therefore, not supposed to act merely
as a post office and needs to adopt a judicial27. In fact, the
Magistrate ought to direct investigation by the police only where the
assistance of the investigating agency is necessary and the court feels
that the cause of justice is likely to suffer in the absence of
investigation by the police. The Magistrate is not expected to
mechanically direct investigation by the police without first
examining whether in the facts and circumstances of the case,
investigation by the State machinery is actually required or not. If the
allegations made in the complaint are simple, where the court can
straightaway proceed to conduct the trial, the Magistrate is expected
to record evidence and proceed further in the matter, instead of
passing the buck to the police under Section 156(3) CrPC. Of course,
if the allegations made in the complaint require complex and
complicated investigation which cannot be undertaken without active
assistance and expertise of the State machinery, it would only be
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                                                                    14


                                    appropriate for the Magistrate to direct investigation by the police
                                    authorities. The Magistrate is, therefore, not supposed to act merely
                                    as a post office and needs to adopt a judicial approach while
                                    considering an application seeking investigation by the police.
                                    approach while considering an application seeking investigation by
                                    the police.”

                                    26. Placing reliance upon the aforesaid observations made in
                                    aforementioned paragraphs of the above report, the learned Senior
                                    counsel for petitioners vehemently urged that the Jurisdictional Magistrate
                                    completely lost sight of the fact that for the offence complained of, no
                                    police investigation was required as there was no such material i.e.
                                    documentary or oral evidence which could not be produced by the first
                                    informant or the same not be got produced before Court through the Court
                                    itself. He, therefore, submits that in view of above, the Jurisdictional
                                    Magistrate upon receipt of application under Section 173(4) BNSS was
                                    not under a legal obligation to mechanically allow the same. As such, the
                                    impugned order passed by the learned Magistrate is not only arbitrary but
                                    also in excess of jurisdiction. As such, the same is liable to be quashed by
                                    this Court.

                                    27. We deliberately segregated the aforesaid submission from the
                                    discussion in previous part of this order primarily for the reasons that (a)
                                    neither the order of Jurisdictional Magistrate has been brought on record,
                                    (b) neither the same has been impugned in present writ petition and (c) no
                                    pleadings and grounds in support of above submissions have been raised
                                    in support of the same.

                                    25. As a result, the present writ petition fails and is liable to be dismissed.

                                    26. It is, accordingly, dismissed.




                                                                 (Lakshmi Kant Shukla,J.) (Rajeev Misra,J.)
                                    March 17, 2026
                                    Arti




Digitally signed by :-
ARTI SHARMA
High Court of Judicature at Allahabad