Parveen Bano vs State Of U.P. And 5 Others
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Allahabad High Court

Parveen Bano vs State Of U.P. And 5 Others on 13 May, 2025

Author: Raj Beer Singh

Bench: Raj Beer Singh

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:78287
 
Court No. - 71
 

 
Case :- APPLICATION U/S 528 BNSS No. - 5127 of 2025
 
Applicant :- Parveen Bano
 
Opposite Party :- State Of U.P. And 5 Others
 
Counsel for Applicant :- Akhilesh Kumar Dubey,Vinay Kumar Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Raj Beer Singh,J.
 

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

2. The present application under Section 528 of Bhartiya Nagarik Suraksha Sanhita (hereinafter referred as 'BNSS') has been preferred against the order dated 20.08.2024, passed by the Additional Civil Judge (J.D.), New Court-10/Judicial Magistrate, Jaunpur in Misc. Case No. 416 of 2024, whereby the application filed by the applicant under Section 156(3) Cr.P.C. has been registered as a complaint case, as well as against the order dated 21.12.2024, passed by learned Sessions Judge, Jaunpur in criminal revision no. 368 of 2024, whereby the revision filed against the order dated 20.08.2024 has been dismissed.

3. It has been argued by learned counsel for applicant that the applicant has filed an application under Section 156(3) Cr.P.C. against opposite party Nos. 2 to 6, making allegations that on 16.06.2024 at about 06:30 PM opposite party Nos. 2 to 6 have assaulted the applicant by legs and fists. She has alleged that they have torn her clothes and when her brother-in-law (Dewar) Samiullah tried to save her, they have attacked with a knife and he has sustained injuries at his chest and finger. It was submitted that the application under Section 156(3) Cr.P.C. discloses commission of cognizable offence but the prayer for investigation was declined by learned Magistrate and the said application has been registered as a complaint case vide impugned order dated 20.08.2024. It is further submitted that applicant has preferred a criminal revision against order dated 20.08.2024, which has been dismissed by the revisional court vide impugned order dated 21.12.2024 without considering facts and position of law. Learned counsel has referred the case of Lalita Kumari vs Govt. Of U.P. & Ors, AIR 2014 SC 187 and submitted that as the cognizable offence is made out, thus impugned orders are liable to be set aside and a direction must be made for registration of case and investigation by police.

4. Learned A.G.A. has opposed the application and argued that there is no illegality or perversity in the impugned orders.

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 Magistrate vide order dated 20.08.2024 and the prayer of investigation by police was declined. The applicant has preferred a revision against said order dated 20.08.2024, which has been dismissed by the Session Court vide order dated 21.12.2024. It is well settled that availing remedy of revision before the Sessions Court under Section 399 Cr.P.C./440 BNSS does not bar a person from invoking powers of High Court under Section 482 Cr.P.C. but in such a matter powers under Section 482 Cr.P.C. 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 482 Cr.P.C. 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 case it appears from record that a case was registered against the applicant and her family members from the side of private opposite parties for the offence under Sections 323, 504, 506, 325, 307 IPC and that the applicant has sought registration of a cross-case regarding same incident. Merely some simple injuries have been shown to the brother-in-law of applicant. All the facts are within the knowledge of applicant. As the application of applicant under Section 156(3) Cr.P.C. has already been registered as a complaint case, thus, the applicant can pursue the matter in that complaint. As stated above, the revision against order dated 20.08.2024 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 court 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. In view of material on record, the aforesaid case law, relied by learned counsel for the applicant, does not help the applicant. 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 accordingly dismissed.

Order Date :- 13.5.2025

Anand