Allahabad High Court
Awdhesh Prasad Mishra vs State Of U.P. And 2 Others on 23 July, 2025
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:121108
Court No. - 71
Case :- APPLICATION U/S 528 BNSS No. - 20435 of 2025
Applicant :- Awdhesh Prasad Mishra
Opposite Party :- State Of U.P. And 2 Others
Counsel for Applicant :- Lokesh Kumar Dwivedi,Rajneesh Tiwari
Counsel for Opposite Party :- G.A.
Hon'ble Raj Beer Singh,J.
1. Heard learned counsel for the applicant and learned A.G.A. for the State.
2. The present application under Section 528 of Bhartiya Nagarik Suraksha Sanhita (hereinafter referred to as 'BNSS') has been preferred against the order dated 12.09.2024, passed by the Additional Chief Judicial Magistrate, Court No. 2, Prayagraj in Misc. Application No. 168/XII/2024, whereby the application filed the applicant under Section 173(4) BNSS has been rejected, as well as against the order dated 01.05.2025, passed by learned Additional Sessions Judge-I (POCSO), Prayagraj in criminal revision no. 853 of 2024, whereby the revision filed against the order dated 12.09.2024 has been dismissed.
3. It is submitted by learned counsel for the applicant that the impugned orders are against facts and law and thus, liable to be set aside. It was submitted that applicant has purchased the disputed property from opposite party No. 2 through registered sale-deed and mutation has taken place in favour of the applicant but after death of mother of opposite party No. 2, he along with opposite party No. 3 has got mutated the name of opposite party No. 2 in the revenue record by way of cheating and forgery. It was further submitted that a cognizable offence is made out against the private opposite parties and thus, the matter is required to be investigated by the police and the impugned orders are liable to be quashed.
4. Learned A.G.A. has opposed the application and submitted that there is no illegality or perversity in the impugned orders.
5. I have considered the rival submissions and perused the record.
6. The issue 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 cognizance offence is no more '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. 2007 (59) ACC 739. After considering 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. (supra) has answered the question referred to it, in paragraph 23 of the judgment 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."
7. Thus, 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 applicant had any substance or not. 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.
8. In case Mrs. Priyanka Srivastava and another vs. State of U.P. and others; 2015 AIR(SC)1758, the Hon'ble Apex Court held as under:
"At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same."
9. Thus, while dealing with application under Section 156(3) Cr.P.C., 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). The provisions of Section 156(3) Cr.P.C. have been reincarnated in Section 173(4)/175(3) of B.N.S.S. and similarly the provisions of Section 482 Cr.P.C. have been reincarnated in Section 528 of B.N.S.S. Thus, the aforesaid legal analogy would be applicable in respect of an application filed under Section 173(4) BNSS.
10. In the instant matter perusal of record shows that the essence of allegation of applicant is that he has purchased the disputed property from opposite party No. 2 and his name was entered into the revenue record but after death of mother of opposite party No. 2, the opposite party Nos. 2 and 3 have got mutated the name of opposite party No. 2 in the revenue record regarding that property by way of cheating and forgery. Learned Magistrate as well as learned revisional court have observed that the dispute between the parties relates to entry in the revenue record, which is purely civil in nature and no cognizable offence is made out. Considering nature of accusations and position of law, it cannot be said that the impugned orders are suffering from any material illegality or perversity. There is nothing to show that there has been any abuse of the process of Court or miscarriage of justice, so as to require any interference by this Court in exercise of powers conferred under Section 528 BNSS. The application under Section 528 BNSS lacks merit and thus, liable to be dismissed.
11. However, the applicant would be at liberty to take appropriate recourse before the concerned Revenue Courts / Revenue Authorities in accordance with law.
12. With the aforesaid observations, the instant application under Section 528 BNSS is hereby dismissed.
Order Date :- 23.7.2025
Anand
