Shalini Rajoria vs State Of U.P. And Another
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Allahabad High Court

Shalini Rajoria vs State Of U.P. And Another on 13 May, 2025

Author: Raj Beer Singh

Bench: Raj Beer Singh

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:78919
 
Court No. - 71
 

 
Case :- APPLICATION U/S 528 BNSS No. - 5194 of 2025
 

 
Applicant :- Shalini Rajoria
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Vinay Kumar
 
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 17.01.2025, passed by the learned Chief Judicial Magistrate, Firozabad in Misc. Case No. 3143 of 2023 (Shalini Rajoria v. Manoj Raj and others), whereby the application filed by applicant under Section 173(4) BNSS has been registered as a complaint case and prayer for investigation by police has been rejected.

3. Learned counsel for the applicant submitted that the applicant has filed application under Section 173(4) BNSS alleging that on 06.10.2024 opposite party no.2 and others came at her house and told that they need an amount of Rs.5/- lakhs from her husband and they have abused her and threatened to implicate the applicant in a false case. Learned counsel submitted that a prima facie cognizable offence under Section 506 IPC was made out and thus, the Magistrate was bound to pass an order for investigation by police. Learned counsel has referred case of Lalita Kumari v. Govt. of U.P. & Others, 2013 0 Supreme(SC) 1032 and submitted that in view of law laid down by the Apex Court, the Magistrate is bound to pass an order for investigation by police if a cognizable offence is made out. Referring to these facts, it was submitted that the impugned order is against 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.

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 the instant matter, perusal of record shows that only allegation made by applicant in application under Section 173(4) BNSS is that opposite party no.2 along with one other person came at her house and told that they need an amount of Rs.5/- lakhs from her husband and they did "Gaali-Galauj" and threatened to implicate the applicant in a false case. It is correct that in the above-referred case of Lalita Kumari (supra), the Hon'ble Apex Court has, inter alia, held that in case an application is made to the In-charge police station disclosing commission of cognizable offence the said information must be registered by the Incharge of Police Station under Section 154 CrPC but in the said judgement, there is no such direction to the Magistrate that while exercising jurisdiction under Section 156(3) CrPC or 175(3) BNSS, he is bound to order an investigation by police in each and every application under Section 156(3) CrPC. As held earlier, while considering an application under Section 156(3) CrPC/ 173(4), 175(3) BNSS, the discretion has to be exercised judiciously and as referred above the Magistrate has to consider the matter whether the allegations made in application have any substance or not. In the instant matter, merely a general and vague allegation has been made and all the facts are within the knowledge of the applicant. Nothing is to be recovered. In view of these facts and circumstances, it cannot be said that the impugned order is suffering from any material illegality or perversity. 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 applicant is free to pursue her complaint as per law.

11. Considering the entire facts, 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.

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

Order Date :- 13.5.2025

Rama Kant