Allahabad High Court
KALLUversusSTATE OF U.P. AND ANOTHER
- Decided
- Disposal
- Dismissed on merits
- Bench
- ACHAL SACHDEV
Holding
The application under Section 528 is dismissed as the applicant should pursue a revision remedy.
Summary
The applicant, Kallu, alleged that his daughter was assaulted by Nilesh Gupta while traveling and that the police refused to register an FIR. He filed an application under Section 173(4) of the Criminal Procedure Code seeking registration of the case as a complaint under Section 223. The Special Judge ordered the application to be treated as a complaint, which the applicant challenged by filing an application under Section 528 of the BNSS. The High Court held that the applicant had an alternative remedy of filing a revision against the Special Judge’s order and therefore dismissed the Section 528 application as not maintainable. The court directed the return of the certified documents to the applicant’s counsel.
Issues considered
- Whether the application under Section 528 of the BNSS is maintainable when a revision remedy is available.
- Whether the order directing registration of the matter as a complaint under Section 223 is in accordance with law.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 173(4), 223, 528
Subjects
- FIR registration
- Section 173(4)
- Section 223
- Section 528
- revision
- maintainability
- sexual assault
- POCSO Act
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 28406 of 2025
Kallu
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite Party(s)
Counsel for Applicant(s) : Pradeep Kumar Pandey, Dev Prakash Sharma,
Priyanka Devi
Counsel for Opposite Party(s) : G.A., Vaibhav Gupta
Court No. - 81
HON'BLE ACHAL SACHDEV, J.
1. Heard learned counsel for the applicant, learned counsel for opposite party no.2,
learned AGA for the State and perused the record.
2. This application u/s 528 BNSS has been preferred by the applicant with prayer to
set-aside the order dated 03.06.2025 passed by the learned Special Judge(POCSO
Act)/Upper Session Judge, Mahoba, in Criminal Misc. Case No.77 of 2025 (Kallu Vs.
Nilesh Gupta), whereby the application of the applicant u/s 173(4) BNSS, Police
Station Kabrai, District Mahoba has been directed to proceed as Complaint Case, U/s
223 BNSS.
3. Learned counsel for the applicant submits that applicant has moved an application
u/s 173(4) BNSS, stating therein that on 06.04.2025 at 12.00 Noon applicant
alongwith his daughter Nisha and wife was standing on the road side of HDFC bank
waiting for vehicle to go Mahoba, in the mean time, the opposite party no.2-Nilesh
Gupta came there on his Scorpio vehicle and on ask her daughter told the opposite
party no.2 that she is going to Mahoba for treatment alongwith her mother and father,
who was gone to bathroom. The opposite party no.2 asked her daughter to sit in the
front and when she sat in the Scorpio vehicle, then the the opposite party no.2 started
the vehicle and told her that her mother and father will follow by his other vehicle.
When the vehicle reached Kili Pahadi (Tigela) the opposite party no.2 misbehaved
with her daughter and tried to outrage her modesty and when the victim raised voice
the opposite party no.2 ran away from the spot. The applicant and his wife reached
there by another auto. The applicant tried to lodge the FIR of the alleged incident and
NA528 No. 28406 of 2025
2
when the FIR was not lodged by the police personnel, he moved an application u/s
173(4) BNSS with prayer to register the case and investigate the matter.
4. Learned counsel for the applicant submits that learned trial court without asking the
police report from the police station concerned has passed an order dated 03.06.2025,
by which the application U/s 173(4) Cr.P.C. moved by the applicant was directed to be
registered as a complaint case u/s 223 BNSS, which is not in accordance with the law
laid down by Hon'ble Apex Court in the case of "Lalita Kumari Vs. State of U.P."
(2014) 2 SCC 1.
5. Learned counsel for the opposite party no.2 as well as learned AGA for the State
have vehemently opposed the aforesaid arguments of learned counsel for the applicant
and has raised a preliminary objection on the ground of maintainability of present
application and has submitted that the applicant has an alternative remedy to approach
the revisional court by means of filing revision against the impugned order dated
03.06.2025, by which the application U/s 173(4) Cr.P.C. moved by the applicant was
directed to be registered as complaint case u/s 223 BNSS, hence present application is
liable to be rejected.
6. In view of the above arguments advanced by learned counsel for the parties, this
Court is of the view that the applicant has an alternative remedy to approach the
revisional court by means of filing revision against the impugned order dated
03.06.2025, therefore, the present application is liable to be dismissed.
7. Accordingly, the present application u/s 528 BNSS is hereby dismissed.
8. Certified copy of the documents shall be returned to learned counsel for the
applicant as per Rules.
April 23, 2026
VKG
(Achal Sachdev,J.)
Digitally signed by :-
VIJAY KUMAR GUPTA
High Court of Judicature at Allahabad
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