Allahabad High Court
Kadar Khan vs State Of U.P. And Another on 22 August, 2025
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:144850 Neutral Citation No. - 2025:AHC:144850 Court No. - 71 Case :- APPLICATION U/S 528 BNSS No. - 24985 of 2025 Applicant :- Kadar Khan Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rajesh Kumar Pal Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J.
1. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
2. The present application under Section - 528 B.N.S.S. has been filed with the following prayer :-
"It is most respectfully prayed that this Hon'ble Court may most graciously be pleased to allow this application and set-aside the impugned order dated 18.09.2024, passed by Chief Judicial Magistrate, Hathras in Application No. 675/12 of 2024 and order dated 21.12.2024, passed by Sessions Judge, Hathras, in Criminal Revision No. 147 of 2024, P.S. Kotwali Hathras, District Hathras, otherwise the applicant shall suffer irreparable loss and injury."
3. It is submitted by learned counsel for the applicant that applicant was doing 'pairvi' in a case under Section - 376 I.P.C. (Case No. 59 of 2015 [State of U.P. Vs. Rashid]) from the side of informant and that in connivance with other party, the opposite party no.2 has falsely implicated the applicant in a case under NDPS Act and he was sent to jail. It was submitted that applicant was forcibly lifted from his house and implicated in the NDPS case and applicant has to remained in jail for two months in that case. Applicant has moved an application under Section ? 156 (3) Cr.P.C. against opposite party no.2 Narendra Singh (Sub-Inspector) making said allegations but that application was rejected by the learned Magistrate vide order dated 18.09.2024 in an arbitrary manner. The applicant has preferred a criminal revision against order dated 18.09.2024 but the revision was also dismissed by the learned Sessions Judge, Hathras vide impugned order dated 21.12.2024. Learned counsel submitted that a prima facie case for investigation is made out and both the impugned orders are liable to be quashed.
4. Learned A.G.A. has opposed the application and submitted that there is no illegality or perversity in the impugned orders. It was submitted that the case lodged under NDPS Act against applicant is still stated pending and thus, it could not be said that the said case was false.
5. I have considered the rival submissions and perused the record.
6. It is well settled that Magistrate is not bound to pass order of investigation by police in each and every case in a routine manner. 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. In this connection reference may be made to case of Sukhwasi Vs. State of U.P.; 2007 (59) ACC 739.
7. 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."
8. 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).
9. In the instant matter, perusal of record shows that the main allegation of applicant is that he has been falsely implicated in a NDPS case, vide Crime No. 173 of 2024. The trial of the said case is still stated pending. Whether the said case is false or otherwise can only be decided by the trial court, where the said NDPS Act case is pending. In view of these facts and circumstances, it cannot be said that a case for direction under Section ? 156 (3) Cr.P.C. is made out. Learned Magistrate has rejected the application of applicant by a reasoned order. Revisional court has also considered facts and position of law and revision was dismissed. Here it would be relevant to mention that once revision against order passed by the Magistrate has been dismissed, 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 this connection reference may be made to 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. Thus, it is clear that once against an order revision is dismissed in such a case interference under Section - 528 BNSS / 482 Cr.P.C. can only be made in above referred circumstances. 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.
11. Accordingly, the application under Section 528 B.N.S.S. is hereby dismissed.
Order Date :- 22.8.2025 S Rawat