Jameela Khatoon vs State Of U.P. And 3 Others
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Allahabad High Court

Jameela Khatoon vs State Of U.P. And 3 Others on 15 May, 2025

Author: Raj Beer Singh

Bench: Raj Beer Singh

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:80553
 
Court No. - 71
 

 
Case :- APPLICATION U/S 528 BNSS No. - 10657 of 2025
 

 
Applicant :- Jameela Khatoon
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Satya Priya Mishra
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Raj Beer Singh,J.
 

1. Supplementary affidavit filed by learned counsel for the applicant is taken on record.

2. Heard learned counsel for the applicant and learned A.G.A. for the State.

3. This application under Section 528 Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as BNSS) has been preferred against order dated 18.01.2025, passed by the Court of Judicial Magistrate, Kasya, Kushinagar in Criminal Misc. Application No.684 of 2024 (UPKU100086042024) (Jameela Khatoon Vs. Ijhar and others). The order dated 13.02.2025, passed by the Sessions Judge, Kushinagar, Padrauna, in Criminal Revision No.08 of 2025 (UPKU10004772025), is also being impugned, whereby the revision against order dated 18.01.2025 has been dismissed.

4. It has been submitted by learned counsel for the applicant that applicant has filed an application under Section 173(4) BNSS against opposite party nos.2 to 4, making allegations of physical exploitation and disappearance of her husband and that a prima-facie cognizable offence was made out but despite that learned Magistrate has declined the prayer for investigation by police and the application of applicant was registered as a complaint. The applicant has preferred a criminal revision against order dated 18.01.2025 but the revision has also been dismissed in an arbitrary manner and without considering facts and position of law. It was pointed out that in first information report lodged against husband of applicant no progress has been made so far and the said case was lodged making false allegations. Learned counsel submitted that there are serious allegations against opposite party nos.2 to 4 and that a cognizable offence was made out and thus a direction must have been made to the police to register a case and to investigate the matter and thus the impugned orders are liable to be set aside.

5. Learned A.G.A. has opposed the application and submitted that there is no material illegality or perversity in the impugned orders.

6. I have considered the rival submissions and perused the record.

7. So far the position of law regarding provisions of Section 156(3) Cr.P.C, which have been reincarnated in Section 173(4) BNSS is concerned, it is well-settled that when an application under Section 156(3) Cr.P.C. / 173(4) BNSS is made, the Magistrate is not bound to pass order of investigation by police even if such application discloses cognizable offence. In this connection a reference may be made to the Division Bench judgment of this Court in case of Sukhwasi vs. State of U.P. 2007 (59) ACC 739 and judgment of Full Bench in case of Ram Babu Gupta & others vs. State of U.P. 2001 (43) ACC 50. In fact, the Magistrate is required to apply his mind to find out whether first information report sought to be lodged by the applicant had any substance or not. Even in cases where prima-facie cognizable offence is disclosed from the averments made in the application under Section 156(3) Cr.P.C., in proper cases according to facts and nature of offence alleged to have been committed, the Magistrate can decline to direct investigation and that the application under Section 156(3) Cr.P.C. can be treated as a complaint case.

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. Coming to facts of the present matter, it appears that the opposite party nos.2 & 3, namely, Ijhar and Barmanand Gupta have lodged a case against husband of applicant and after that the applicant has made application under Section 173(4) BNSS alleging that opposite party nos.2 & 3, namely, Ijhar and Barmanand Gupta used to physically exploite her and in this regard when complaint was made to the father of said Ijhar, namely, Dr. Samshool Hak (opposite party no.4), he has also asked the applicant to fulfill their desire. Later, opposite party nos.2 & 3 have pressurized the applicant to send her daughter to them. It was further alleged that on 15.03.2024 the husband of applicant was gone missing and when she enquired from opposite party no.2 Ijhar, he has told that she has to send her daughter to him and thereafter his husband would return. The applicant has also mentioned some phone numbers stating the caller of those numbers were threatening to her. She has alleged that her husband has been kidnapped by opposite party nos.2 & 3 thus, it may be seen that only general and vague allegations have been made by the applicant that opposite party nos.2 & 3 have physically exploited her and later they have asked her to send her daughter to them. No specific date, time and place of alleged exploitation has been mentioned. As far as the disappearance of husband of applicant is concerned, as per applicant herself a case has been registered against her husband. Though, generally a woman would not make false allegations of molestation against a person but now a days it is not uncommon that in many cases false allegations of rape and sexual molestation are made so as to settle score. There are cases where such false charges are motivated by motive like revenge, extortion or to exert undue pressure in property and other disputes. In view of attending facts and circumstances of the mater, the decision of learned Judicial Magistrate by registering the application under Section 173(4) BNSS as a complaint case can not be said unjust or against law. Further, the revision against the order of Magistrate has been dismissed by Session Court vide order dated 13.02.2025. No material illegality or perversity could be pointed out in order dated 13.02.2025. Once the revision against an order is dismissed, the interference under Section 482 Cr.P.C. / 528 BNSS can only be made when there is grave miscarriage of justice or abuse of process of the Court or the required statutory procedure has not been followed with or there is failure of justice. It is therefore to meet the ends of justice or to prevent abuse of process that High Court is preserved with inherent powers and would be justified under such circumstance to exercise inherent powers. In this connection reference may be made to case of Deepti aliasArati Rai v. Akhil Rai & Ors, (1995) 5 SCC 751, Laxmi Bai Patel Vs. Shyam Kumar Patel; 2002 0 Supreme (SC) 283, Dharampal & Ors. v. Ramshri; 1993 (1) SCC 435 and Rajathi Vs. C.Ganesan; 1999 SCC (Cri) 1118.

10. In the instant matter, considering facts of the matter and position of law, it can not be said that there has been any miscarriage of justice or abuse of the process of court or that the impugned order has resulted into failure of justice. Thus, no case for invoking powers under Section 528 BNSS / 482 Cr.P.C. is made out. The application under Section 528 BNSS lacks merits and thus, liable to be dismissed.

11. Accordingly, the application u/s 528 BNSS is dismissed.

Order Date :- 15.5.2025

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