Vinay Kumar vs State Of U.P. And 2 Others
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Allahabad High Court

Vinay Kumar vs State Of U.P. And 2 Others on 15 May, 2025

Author: Raj Beer Singh

Bench: Raj Beer Singh

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:80938
 
Court No. - 71
 

 
Case :- APPLICATION U/S 528 BNSS No. - 16153 of 2025
 

 
Applicant :- Vinay Kumar
 
Opposite Party :- State Of U.P. And 2 Others
 
Counsel for Applicant :- Surya Prakash Dubey,Ved Prakash Dubey
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Raj Beer Singh,J.
 

1. Heard learned counsel for the applicant and learned AGA for the State.

2. This application under Section 528 BNSS has been preferred against the order dated 21.09.2024 passed in Misc. Case No.115 of 2024 (Vinay Kumar v. Vinod Jaiswal & others) under Section 156(3) CrPC, P.S.- Khalilabad, District- Sant Kabir Nagar, whereby the application filed by the applicant under Section 156(3) CrPC has been registered as a complaint case.

3. Learned counsel for the applicant submitted that impugned order is against facts and law and thus, liable to be set aside. The applicant has filed application under Section 156(3) CrPC alleging that he has lended an amount of Rs.6,50,000/- to the opposite party no.2 and he has promised to return the same within two months but the said amount was not returned back. On 08.01.2024 when applicant demanded his amount from the opposite party nos.2 & 3, they have abused and threatened him. Learned counsel for the applicant submitted that the application discloses commission of cognizable offence but the prayer of applicant for investigation by police was rejected and said application has been registered as a compliant case by impugned order dated 21.09.2024. Learned counsel has relied upon the case of Suresh Chand Jain v. State of M.P. and Another, reported in 2001 (2) SCC 628 and submitted that cognizable offence was made out and thus, a direction must be to the police for registration of case and therefore impugned order is liable to be set aside.

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). 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) B.N.S.S.

10. In case of Suresh Chand Jain (supra), the facts were on different footing and in that case no such law has been laid down that when an application is made under Section 156(3) CrPC, Magistrate is bound to order an investigation by police. Similarly in case of Mukesh Kharwar v. State of UP and Ors., MANU/UP/3559/2024, relied by learned counsel for the applicant, no such law has been laid that if in an application filed under Section 156(3) CrPC allegations of cognizable offence have been levelled, Magistrate is bound to order an investigation by police. As observed earlier Magistrate is required to apply it's mind to find out whether such allegations have any substance or not and as per law laid down by Division Bench in case of Sukhwasi (supra), in appropriate cases the Magistrate has power to decline investigation by police even if there are allegations of cognizable offence.

11. In the instant matter, perusal of record shows that the main allegation of applicant is that he has lended some amount to the opposite party no.2, which has not been returned back. In view of the nature of accusations and above-referred position of law, it cannot be said that a case for investigation by police was made out. The application filed by the applicant has been rejected by learned Chief Judicial Magistrate by a reasoned order. There is no material illegality or perversity in the impugned order. 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 by invoking extraordinary powers under Section 528 B.N.S.S. The application under Section 528 B.N.S.S. lacks merit and thus, liable to be dismissed.

12. Accordingly, the application under Section 528 B.N.S.S. is hereby dismissed.

Order Date :- 15.5.2025

Rama Kant