Allahabad High Court
RANNO DEVIversusSTATE OF U.P. AND 4 OTHERS
- Decided
- Bench
- GAUTAM CHOWDHARY
Holding
The High Court set aside the order treating the 173(4) application as a complaint and remitted the matter for a fresh decision in accordance with law.
Summary
Ranno Devi filed a petition under Section 528 of the B.N.S.S. seeking to quash an order of the Additional Sessions Judge who had treated her application under Section 173(4) of the B.N.S.S. as a mere complaint. The applicant alleged that her daughter was enticed away by accused No.4 and No.5 on 23‑12‑2025, taken to Kanpur, subjected to sexual contact and abandoned at a railway station, and that the police failed to register an FIR despite her complaint. The magistrate rejected the 173(4) application without applying judicial mind, deeming the allegations not credible. The High Court held that the magistrate must consider the nature of the allegations and apply his mind before rejecting a 173(4) application, especially where a prima facie cognizable offence appears. Consequently, the court set aside the lower court’s order and remitted the matter for a fresh decision, disposing of the Section 528 application.
Issues considered
- What is the correct procedure for a magistrate when considering an application under Section 173(4) of the B.N.S.S.?
- Whether the lower court erred in treating the 173(4) application as a complaint without applying judicial mind.
- Whether the order passed under Section 528 B.N.S.S. should be quashed.
Legislation cited
Subjects
- Section 528
- Section 173(4)
- magistrate jurisdiction
- complaint vs investigation
- quashing order
- POCSO Act
- FIR registration
- enticing away
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 14721 of 2026
Ranno Devi
.....Applicant(s)
Versus
State Of U.P. And 4 Others
.....Opposite
Party(s)
Counsel for Applicant(s) : Puneet Kumar
Counsel for Opposite Party(s) : G.A.
Court No. - 82
HON'BLE DR. GAUTAM CHOWDHARY, J.
1. Heard learned counsel for the applicant, learned A.G.A. for the State
and perused the material on record.
2. The present application under Section 528 of B.N.S.S. has been filed
for quashing the order dated 11.03.2026 passed by learned Additional
Sessions Judge/Special Judge, POCSO Act, Fatehpur, in Criminal Case
No. 08 of 2026 whereby application under Section 173 (4) of B.N.S.S.,
has been treated as a complaint case.
3. It has been argued by learned counsel for the applicant that
informant's/applicant daughter became acquainted with the cousin devar
of the applicant's sister as such the applicant;s daughter had gone with
him on 19.12.2025 came to her house. On 23.12.2025 the accused-
opposite party nos. 4 and 5 came to village and they enticed away the
daughter of the informant to Kanpur and they resided there and physical
relations were also established by the opposite party no.4, thereafter she
was left at railway station. Learned counsel for the applicant has further
contended that the incident is alleged to have taken place on 23.12.2025,
thereafter the applicant tried to lodge the F.I.R., but her F.I.R. could not
be lodged as such an application before the Superintendent of Police,
Fatehpur was sent through registered post, even then the F.I.R. could not
be lodged. Thereafter on 07.01.2026, application under Section 173(4) of
B.N.S.S. has been filed however the same has been treated as a complaint
case. Learned counsel further argued that perusal of the application goes
to show that prima facie cognizable offence is made out against the
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2
accused-opposite parties but the learned Magistrate without considering
the contents of application under Section 173(4) of B.N.S.S., has treated
the same as a complaint case, which is illegal, arbitrary, without
application of judicial mind and as such the same is liable to be quashed
by this Hon'ble Court.
4. Learned A.G.A. has opposed the application and argued that the
impugned order is perfectly legal just and proper which calls for no
interference by this Court and therefore the impugned order is liable to be
upheld by this Court.
5. It is well settled that before exercising jurisdiction under section 173(4)
of B.N.S.S., the Magistrate is required to apply his mind and in case a
prima facie cognizable offence is made out, the direction for investigation
by police may be issued. No doubt in appropriate cases, the Magistrate
may decline to issue such direction and may reject the application filed
under section173(4) of B.N.S.S., however, the jurisdiction under section
173(4) of B.N.S.S., has to be exercised judiciously considering the
peculiar facts and circumstances of a case. In appropriate cases the
magistrate can verify the veracity of allegations made in application under
section 156(3) Cr.P.C.
6. In case of Ramdev Food Products Private Limited v. State of
Gujarat Criminal Appeal No. 600 of 2007 decided on 16.03.2015, while
dealing with the exercise of power under Section 156(3) CrPC by the
Magistrate, the Hon'ble Apex Court has held that:
".... 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 instance 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. Cases where Magistrate takes cognizance and postpones issuance of process
are cases where the Magistrate has yet to determine "existence of sufficient ground to
proceed."
7. Keeping in view the settled position of law, it may be seen that in the
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3
instant matter the conclusion of the court below that the allegation
enticing away the daughter of the informant has been levelled against the
accused-opposite parties and that the victim was kept by the opposite
party no.4 in a room, thereafter, he left her at railway station/ It has also
been alleged that when the police did not register a case, the applicant has
made a complaint to S.P concerned but despite that the first information
report was not registered. Thereafter the application under section 173(4)
of B.N.S.S., was moved before the court below. Here it may be observed
that while dealing with an application under section 173(4) of B.N.S.S.,
the nature of allegations has also to be kept in mind. In the instant matter
there were allegations that a daughter of the informant has been enticed
away. The applicant has named the accused-opposite parties in an
application under section 173(4) of B.N.S.S., and in view of nature of
allegation, it was quite desirable that the matter be investigated by the
police, particularly due to the reason that the informant's daughter has
been enticed away.
8. Considering the entire facts of the matter it is apparent that the court
below has ignored the nature of allegations made in application under
section 173(4) of B.N.S.S., and committed error by rejecting the
application of applicant by merely observing that the allegations of
applicant do not appear credible. Considering all the facts of the matter it
appears quite desirable that matter be investigated by police.
9. In view of aforesaid the impugned order is set aside and matter is
remitted back to the court below to pass an order afresh in accordance
with law.
10. Accordingly, the instant application under Section 528 of B.N.S.S., is
disposed of.
(Dr. Gautam Chowdhary,J.)
April 20, 2026
S.Ali
Digitally signed by :-
SHAUKAT ALI
High Court of Judicature at Allahabad
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