Allahabad High Court
Akhilesh Kumar Yadav vs State Of U.P. And Another on 17 March, 2025
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:37108
Court No. - 71
Case :- APPLICATION U/S 528 BNSS No. - 8482 of 2025
Applicant :- Akhilesh Kumar Yadav
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Kunwar Abhishek Singh,Suresh Pratap Singh
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. This application under Section 528 of Bharatiya Nagrik Suraksha Sanhita, 2023 (herein after referred to as B.N.S.S.) has been preferred against the order dated 15.01.2025, passed by learned Chief Judicial Magistrate, Basti, in Criminal Misc. Case No.3078 of 2024 (Misc. Case No.758/12/2024) (Akhilesh Kumar Yadav Vs. Mohd. Ashraf and Others), Police Station- Kotwali, District- Basti, whereby, the application filed by applicant under Section 173(4) B.N.S.S. has been registered as a complaint case and notice was issued to the proposed accused/opposite party no.2 under Section 223(1) B.N.S.S. for hearing on point of cognizance.
3. It has been submitted by learned counsel for the applicant that applicant has filed application under Section 173(4) B.N.S.S., alleging that the opposite party no.2 has told the applicant that he would provide a job of teacher to the applicant and on that pretext an amount of Rs.15,50,000/- was taken by the opposite party no.2 from applicant. Out of that sum, an amount of Rs.8,50,000/- has been paid to the opposite party no.2 through bank account. It was submitted that applicant was neither provided any job nor his amount was returned back and thus a prima-facie cognizable offence was made out but learned Magistrate has not made any direction to the police to register the case. Referring to facts of the matter, it was submitted that matter requires investigation by police and the impugned order is 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 order.
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).
10. The provisions of Section 156(3) Cr.P.C. have been reincarnated in Section 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) B.N.S.S. In the instant matter, the main allegation of opposite party no.2 is that the applicant had taken an amount of Rs. 15,50,000/- from informant on pretext of providing a job of teacher to him. Learned Chief Judicial Magistrate has considered the facts of the matter and observed that all facts are in the knowledge of complainant and thus the application of applicant was registered as a complaint case. In view of nature of accusations and aforesaid position of law, it can not be said that there has been any abuse of the process of the court or the impugned order suffers from any patent illegality or perversity. It can also not be said that the provisions of Section 528 B.N.S.S. are required to be invoked to secure ends of justice. Considering facts of the matter and position of law, no case for invoking powers under Section 528 B.N.S.S. is made out. The application under Section 528 B.N.S.S. lacks merit and thus liable to be dismissed.
11. Accordingly, the application under Section 528 B.N.S.S. is hereby dismissed.
Order Date :- 17.3.2025
'SP'/-
