Allahabad High Court
Ram Manohar vs State Of U.P. And Another on 18 May, 2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2026:AHC:114241
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 11870 of 2024
Ram Manohar
.....Appellant(s)
Versus
State of U.P. and Another
.....Respondent(s)
Counsel for Appellant(s)
:
Ajai Kumar, Krishna Kumar Yadav
Counsel for Respondent(s)
:
G.A., Jitendra Singh, Vikesh Kumar Tiwari
Court No. - 51
HON'BLE MADAN PAL SINGH, J.
1. Heard learned counsel for the appellant, learned counsel for opposite party no.2 and learned A.G.A. for the State.
2. This application has been filed for quashing the order dated 26th September, 2024 passed by the Special Judge (S.C./S.T. Act), Varanasi in Criminal Misc. Case No. 251 of 2024 (Rammanohar Vs. Rituraj Mishra), under Section 156 (3) Cr.P.C./ 173 B.N.S.S. Police Station-Rohaniya, District-Varanasi, whereby application filed by appellant under Section 173 (4) of B.N.S.S. [old Section 156(3) Cr.P.C.] has been rejected.
3. It has been argued by learned counsel for applicant that appellant has submitted an application under Section 173 (4) of B.N.S.S. [old Section 156(3) Cr.P.C.] against opposite party no. 2, making several allegations including the commission of assault and abuse by using caste indicated words upon him by opposite party no.2, which constitute prima facie a cognizable offence, but learned trial court has not considered the entire facts and law in correct perspective and the application of the applicant under Section 173 (4) of B.N.S.S. [old Section 156(3) Cr.P.C.] has been rejected vide impugned order dated 26th September, 2024 without assigning appropriate reasons. It was further argued that the impugned order is against facts and law and thus, liable to be set aside.
4. Learned A.G.A. has opposed the application and argued that learned trial court has assigned appropriate reasons for rejection of application under Section 156(3) Cr.P.C. and that no illegality could be pointed out in the impugned orders.
5. I have considered the facts and circumstances of the case, submission made by the learned counsel for the parties and perused the material available on record including the impugned order.
6. Law regarding jurisdiction under Section 156(3) Cr.P.C. is well settled. Power under Section 156(3) Cr.P.C. has to be exercised by Magistrate judicially on proper grounds and not in a mechanical manner. If application does not indicate that any evidence is required to be collected and preserved and applicant is familiar with names of accused persons and witnesses then in such a case, no investigation by police is required. 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 cognizable offence is no more a '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. reported in 2007 (59) ACC 739. In the case of Smt. Masuman vs. State of U.P. & others reported in 2007 (1) ALJ 221 and some other cases, the single judges of the Court have taken a view that if the application under Section 156(3) Cr.P.C. discloses the commission of a prima-facie cognizable offence, then it is obligatory for the magistrate to direct investigation after registration of the FIR on the basis of that application. Disagreeing with this view, the following question was referred to the larger Bench for decision in the case of Sukhwasi vs. State of U.P. (supra):-
"Whether the Magistrate is bound to pass an order on each and every application under Section 156(3) Cr.P.C. containing allegations of commission of a cognizable offence for registration of the FIR and its investigation by the police even if those allegations, prima-facie, do not appear to be genuine and do not appeal to reason, or he can exercise judicial discretion in the matter and can pass order for treating it as 'complaint' or to reject it in suitable cases"?
7. After having considered 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. has answered the question 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."
8. From the perusal of the impugned judgment order passed by the trial court rejecting the application made by the appellant under Section 173 (4) of B.N.S.S. [old Section 156(3) Cr.P.C.] as well as from the perusal of the application under Section 156 (3) Cr.P.C./173 (4) B.N.S.S., it appears that no prima facie case is made out against the opposite party no.2, as there is no enmity or rivalry between the appellant and opposite party no.2. The opposite party no.2 is only a Sub-Inspector who tried to resolve the civil dispute pending before the appellant and one Heera La. There was no occasion for the opposite party no.2 to beat and abuse the appellant.
9. As such, 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 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).
10. Thus, though, in appropriate cases, learned Magistrate can make a direction for police to investigate the matter but this jurisdiction has to be exercised cautiously and such orders cannot be passed in a routine manner.
11. Keeping in view the legal position and in view of the facts and circumstances of the present case and also considering nature of allegations made in the application under Section 173 (4) of B.N.S.S. [old Section 156(3) Cr.P.C.], rejection of application under Section 173 (4) of B.N.S.S. [old Section 156(3) Cr.P.C.] . by learned trial court vide impugned order dated 26th September, 2024, cannot be said against the provisions of law or suffering from any perversity or illegality. The trial court has also considered entire relevant facts and has assigned appropriate reasons for dismissal of revision, while passing impugned order.
12. This Court can also not loose sight of the Three Judges Bench judgment of the Hon'ble Supreme Court in the Case of Aleque Padamsee v. Union of India (AIR 2007 SC 684), the Full Bench of this Court in Father Thomas v. State of Uttar Pradesh, passed in Criminal Revision No. 1640 of 2001 decided on 22.12.2010, wherein it has been held that even an application under Section 156(3) Cr.P.C. (now Section 173(4) BNSS) has been rejected, the remedy available to the appellant is to file a complaint case before the court concerned under Section 190 (1) (a) read with Section 200 of Cr.P.C. [now Section 210(1)(a) read with Section 223 of BNSS.]
13. In view of the above settled position of law, the proper remedy available to the appellant is to file complaint case under Section 210(1)(b) read with Section 223 of BNSS.
14. Keeping in view the facts and circumstances of the case and the allegations made by the complainant, the order passed by the trial court is found to be correct in the eyes of law. No interference is warranted in the present case.
15. Accordingly, the Criminal appeal is dismissed.
(Madan Pal Singh,J.) May 18, 2026 Sushil/-