Madan Mishra vs State Of U.P. And Another
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Allahabad High Court

Madan Mishra vs State Of U.P. And Another on 20 May, 2025

Author: Raj Beer Singh

Bench: Raj Beer Singh

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:84546
 
Court No. - 71
 

 
Case :- APPLICATION U/S 528 BNSS No. - 14706 of 2025
 

 
Applicant :- Madan Mishra
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Deep Chand Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Raj Beer Singh,J.
 

1. Heard learned counsel for applicant, learned A.G.A. for the State and perused the record.

2. This application u/s 528 BNSS of Bhartiya Nagrik Sanhita, 2023 (hereinafter referred to as BNSS) has been preferred against the order dated 09.01.2025, passed by learned Sessions Judge, Deoria in Criminal Revision No. 180 of 2023, as well as against the order dated 09.08.2023, passed by learned Additional Civil Judge (Junior Division), Court No. 13, Deoria in Criminal Misc. Application No. 1617 of 2022, whereby the application filed by the applicant under Section - 156(3) Cr.P.C. was registered as a complaint case.

3. It is submitted by learned counsel for the applicant that applicant has filed an application under Section - 156 (3) Cr.P.C. against opposite party no.2 making allegations that she has started residing in the premises of applicant and she has taken an amount of Rs. 3 lakhs from the applicant on pretext of providing job to his son. It was further alleged that neither the said amount was returned back nor the son of applicant was provided any job. Learned counsel has submitted that the opposite party no.2 has threatened the applicant and that in view of allegations made in application under Section - 156(3) Cr.P.C. a cognizable offence was made out but the prayer for investigation by the police has been rejected by learned Magistrate and application was registered as a complaint case vide order dated 09.08.2023. It is further submitted that applicant has challenged the order dated 09.08.2023 by filing criminal revision before the Session court but the revision has also been dismissed vide impugned order dated 09.01.2025 without considering facts and law. Referring to facts of the matter, it was submitted that both the impugned orders are against facts and law and thus, 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. It was submitted that it is well settled that Magistrate has jurisdiction to register an application under Section - 156(3) Cr.P.C. as a complaint case even in the cases where cognizable offence is made out. It was further submitted that revision against the order passed by learned C.J.M. has already been dismissed and in such facts interference under Section - 528 BNSS can only be made in extraordinary conditions.

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

6. At the outset, it may be mentioned that application of applicant filed under Section - 156(3) Cr.P.C. was registered as a complaint case by learned Additional Civil Judge (Junior Division), Court No. 13, Deoria vide order dated 09.08.2023 and the prayer of investigation by police was declined. The applicant has preferred a revision against said order dated 09.08.2023, which has been dismissed by the Session Court vide order dated 09.01.2025. It is well settled that availing remedy of revision before the Sessions Court under Section 399 Cr.P.C. does not bar a person from invoking powers of High Court under Section- 528 BNSS but in such a matter powers under Section - 528 BNSS can be invoked only when the Court finds that there is grave miscarriage of justice or abuse of process of Court or the required statutory procedure has not been followed. Thus, once revision is dismissed against an order, interference under Section 528 BNSS can be made only in extraordinary circumstances. In this connection a reference may be made to the case of Deepti alias Arati Rai Vs. Akhil Rai & Ors, (1995) 5 SCC 751, Laxmi Bai Patel Vs. Shyam Kumar Patel; 2002 0 Supreme (SC) 283, Dharampal & Ors. Vs. Ramshri; 1993 (1) SCC 435 and Rajathi Vs. C.Ganesan; 1999 SCC (Cri) 1118.

7. So far 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 concerned, the Division Bench of this Court in the case of Sukhwasi vs. State of U.P. 2007 (59) ACC 739 held 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. It was held that the Magistrate has a discretion to treat an application under section - 156(3) Cr.P.C. as a complaint.

8. 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.

9. 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."

10. 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).

11. In the instant matter, only a general and vague allegation has been made by applicant that the opposite party no.2 was residing in his premises and she has taken an amount of Rs. 3 lakhs from applicant on pretext of providing job to his son but neither the said amount was returned back nor the son of applicant was provided any job. There is no documentary proof of the alleged payment. Considering nature of the allegations, it cannot be said that learned Magistrate has committed any illegality by declining the prayer of investigation by the police and by registering the application as a complaint case. As stated above, the revision against order dated 09.08.2023 has already been dismissed and in such situation the interference under Section - 528 BNSS can only be made in case when there is grave miscarriage of justice or abuse of the process of the courts or the required statutory procedure has not been complied with or there is failure of justice. In the instant matter, no such contingency is made out. Applying the principles set out in the judgments referred above to the case on hand, no case for invocation of powers under Section - 528 BNSS is made out. The application under Section - 528 BNSS lacks merit and thus liable to be dismissed.

12. The application under Section - 528 BNSS is dismissed.

Order Date :- 20.5.2025

S Rawat