Allahabad High Court
Fahimuddin Ansari vs State Of U.P. Thru. Secy. Home Lko. And ... on 7 April, 2026
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2026:AHC-LKO:26826
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
CRIMINAL APPEAL No. - 964 of 2026
Fahimuddin Ansari
.....Appellant(s)
Versus
State Of U.P. Thru. Secy. Home Lko. And Another
.....Respondent(s)
Counsel for Appellant(s)
:
Narendra Gupta
Counsel for Respondent(s)
:
G.A.
AFR
Court No. - 27
HON'BLE RAM MANOHAR NARAYAN MISHRA, J.
1. Heard learned counsel for the appellant, learned AGA for the State, responded no.1 and perused the record.
2. Instant criminal appeal, under Section 14-A(1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, has been preferred against the order dated 26/03/2026 passed by Special Judge, SC/ST Act, Sitapur in Criminal Miscellaneous Case No.75 of 2026, CIS No.127 of 2026, Smt. Sushila versus Fahimuddin Ansari, on application under Section 173(4) BNSS filed by defacto complainant respondent no.2, whereby the learned Special Judge, SC/ST Act has directed the SHO, Tambour, District, Sitapur, to register FIR under the appropriate sections and investigate the case according to the law. Compliance to be ensured within 10 days.
3. Learned counsel for the appellant submitted that there are various discrepancies in the impugned order passed by learned Special Judge on the application under section 173(4) BNSS. The complainant has stated in said application under Section 173(4) BNSS that she had gone to get photocopies of her Aadhar card on 14.12.26 at the shop of the opposite party (appellant), where he tried to get her proximity and asked her address and on pretext of showing his second shop, he took her to his shop of fertilizer and seeds and brought her back to the photocopying shop. He asked her to sit there and engaged in obscene conversation with her and molested her. She anyhow rescued herself from his clutches. On reaching at her home, she narrated the incident to her family members. On the next day i.e. 15/02/2026, she moved an application at police station concerned and also made a complaint through the IGRS portal, but no action was taken. She also filed a complaint against the appellant by registered post to the Superintendent of Police, Sitapur and other higher officers, but no action was taken. Therefore, she was compelled to move the application before the court.
4. He next submitted that there is a distance of 90 kilometers between the "Jan Seva Kendra" operated by the appellant and the residence of the complainant. It is quite unnatural that she would have come to get Photocopies at his Graahak Seva Kendra. The procedural requirements of Section 173(4) BNSS, were not complied with by the complainant. She hatched a conspiracy to falsely implicate the appellant with ulterior motive to get compensation from the government due to her caste factor. She did not visit the police station on asking of higher authority regarding her complaint on the IGRS portal, the learned court below, while passing the impugned order, did not consider the submissions of the police station, wherein, it is stated that no such incident as alleged by the complainant had occurred. It is also stated therein that the appellant had come for her treatment at Kasba, Tambaur, and visited the Jan Seva Kendra operated by the opposite party where some hot talk occurred between them on the question of charges of photocopying. None of the neighbouring shop owners corroborated the incident on interrogation. The learned court below has made wrong observation that on the basis of the averments in the application filed by the applicant and from the report of the police station, it appears that the opposite party had misbehaved and molested the applicant. He also submitted that the applicant had also lodged another FIR vide Case Crime No.141 of 2025 on 13/06/2025 against Deepak Shukla and Sushil Shukla in which she made allegation of molestation, use of criminal force, marpit and criminal intimidation. During the police investigation, the case was found false and final report was submitted.
5. Learned counsel for the appellant prayed for interim relief to stay the operation of the impugned order and submitted that on lodging of the FIR pursuant to the impugned order, the purpose of filing the present revision shall frustrate.
6. Per contra, learned AGA has submitted that the appeal is not maintainable against impugned order which is interlocutory as such in terms of Full Bench judgment of this Court in Father Thomas versus State of UP and Others, reported in 2011 (72) ACC 564, and Jagannath Verma and Others versus State of UP and Another, reported in 2014 (8) ADJ 439. The prospective accused in an order passed on application u/s 156(3) Cr.P.C. (173(4), BNSS. can not prefer an appeal or Revision against an order directing registration of FIR and investigation by police.
7. Learned AGA has also placed reliance on a recent judgment of single bench of this Court in Kamlesh Meena and Others versus State of UP and Others, reported in 2025 (5) ALJ 578 in support of his contentions. He submitted that in the impugned order, learned Special Judge has issued a direction to the Station House Officer concerned to register an FIR and investigate the case under appropriate sections in the light of applications under Section 173(4) BNSS. This is an interlocutory order and revision is not maintainable against such order.
8. Per contra, learned counsel for the appellant placed reliance on an interim order passed by this by Single Bench in Matters Under Article 227 No.1268 of 2026, dated 10/2/2026, wherein, an interim stay was granted against the impugned order passed by the learned CJM, Chandausi, District Sambhal on an application under Section 173(4) of BNSS, whereby learned CJM has issued direction to lodge an FIR and register the case against the petitioners who happen to be Additional Superintendent of Police, North, District Sambhal; being a public servant, before issuing directions under Section 174(3) BNSS, it was incumbent on learned CJM to comply with the provisions of Section 175(4) BNSS before issuing such an order. He also submitted that this is statutory appeal u/s 14(A)(1) of the Act and this Court has ample power to examine the impugned order and set it aside in an appropriate case.
9. I have gone through the judgments cited by learned counsel for the parties, as well as a recent judgment of the Hon?ble Supreme Court in Criminal Appeal No.352 of 2020, Om Prakash Ambadkar versus State of Maharashtra and Others in light of facts and circumstances of the case.
10. Ordinarily, provisions of Section 156(3) CrPC, which is replaced by Section 173(4) BNSS, are invoked by the complainant when the police authorities decline to register an FIR. In such circumstances, a private complaint may be made in the court of the magistrate or Special Judge, as the case may be, and the complainant may pray that police investigation be ordered under Section 156(3) of the CrPC or Section 173(4) of BNSS, as the case may be.
11. The Hon?ble Supreme Court discussed both the provisions, which are essentially pari materia in Om Prakash Ambadkar vs. The State of Maharashtra and others and observed in paragraphs 29, 30, 31, 32, 33, and 34, which are extracted as under:
"29. Section 175 of the BNSS corresponds to Section 156 of the Cr.P.C. Sub-section (1) of Section 175 of the BNSS is in pari materia with sub-section 156(1) of the Cr.P.C. except for the proviso which empowers the Superintendent of Police to direct the Deputy Superintendent of Police to investigate a case if the nature or gravity of the case so requires. Sub-section (2) of Section 175 the BNSS is identical to Section 156(2) of the Cr.P.C. Section 175(3) of the BNSS empowers any Magistrate who is empowered to take cognizance under Section 210 to order investigation in accordance with Section 175(1) and to this extent is in pari materia with Section 156(3) of Cr.P.C. However, unlike Section 156(3) of the Cr.P.C., any Magistrate, before ordering investigation under Section 175(3) of the BNSS, is required to :
a. Consider the application, supported by an affidavit, made by the complainant to the Superintendent of Police under Section 173(4) of the BNSS;
b. Conduct such inquiry as he thinks necessary; and c. Consider the submissions made by the police officer.
30. Sub-section (4) of Section 175 of the BNSS is a new addition to the scheme of investigation of cognizable cases when compared with the scheme previously existing in Section 156 of the Cr.P.C. It provides an additional safeguard to a public servant against whom an accusation of committing a cognizable offence arising in the course of discharge of his official duty is made. The provision stipulates that any Magistrate who is empowered to take cognizance under Section 210 of the BNSS may order investigation against a public servant upon receiving a complaint arising in course of the discharge of his official duty, only after complying with the following procedure: a. Receiving a report containing facts and circumstances of the incident from the officer superior to the accused public servant; and b. Considering the assertions made by the accused public servant as regards the situation that led to the occurrence of the alleged incident.
31. A comparison of Section 175(3) of the BNSS with Section 156(3) of the Cr.P.C. indicates three prominent changes that have been introduced by the enactment of BNSS as follows: a. First, the requirement of making an application to the Superintendent of Police upon refusal by the officer in charge of a police station to lodge the FIR has been made mandatory, and the applicant making an application under Section 175(3) is required to furnish a copy of the application made to the Superintendent of Police under Section 173(4), supported by an affidavit, while making the application to the Magistrate under Section 175(3). b. Secondly, the Magistrate has been empowered to conduct such enquiry as he deems necessary before making an order directing registration of FIR. c. Thirdly, the Magistrate is required to consider the submissions of the officer in charge of the police station as regards the refusal to register an FIR before issuing any directions under Section 175(3).
32. The introduction of these changes by the legislature can be attributed to the judicial evolution of Section 156 of the Cr.P.C. undertaken by a number of decisions of this Court. In the case of Priyanka Srivastava v. State of U.P. reported in (2015) 6 SCC 287, this Court held that prior to making an application to the Magistrate under Section 156(3) of the Cr.P.C., the applicant must necessarily make applications under Sections 154(1) and 154(3). It was further observed by the Court that applications made under Section 156(3) of the Cr.P.C. must necessarily be supported by an affidavit sworn by the applicant. The reason given by the Court for introducing such a requirement was that applications under Section 156(3) of the Cr.P.C. were being made in a routine manner and in a number of cases only with a view to cause harassment to the accused by registration of FIR. It was further observed that the requirement of supporting the complaint with an affidavit would ensure that the person making the application is conscious and also to see that no false affidavit is made. Once an affidavit is found to be false, the applicant would be liable for prosecution in accordance with law. This would deter him from casually invoking the authority of the Magistrate under Section 156(3). The relevant observations made by the Court are reproduced hereinbelow: ?27. Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. The present is a case where the accused persons are serving in high positions in the Bank. We are absolutely conscious that the position does not matter, for nobody is above the law. But, the learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. It is also to be noted that when a borrower of the financial institution covered under the Sarfaesi Act, invokes the jurisdiction under Section 156(3) Cr.P.C. and also there is a separate procedure under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, an attitude of more care, caution and circumspection has to be adhered to. 28. Issuing a direction stating ?as per the application? to lodge an FIR creates a very unhealthy situation in society and also reflects the erroneous approach of the learned Magistrate. It also encourages unscrupulous and unprincipled litigants, like Respondent 3, namely, Prakash Kumar Bajaj, to take adventurous steps with courts to bring the financial institutions on their knees. As the factual exposition would reveal, Respondent 3 had prosecuted the earlier authorities and after the matter is dealt with by the High Court in a writ petition recording a settlement, he does not withdraw the criminal case and waits for some kind of situation where he can take vengeance as if he is the emperor of all he surveys. It is interesting to note that during the tenure of Appellant 1, who is presently occupying the position of Vice- President, neither was the loan taken, nor was the default made, nor was any action under the SARFAESI Act taken. However, the action under the SARFAESI Act was taken on the second time at the instance of the present Appellant 1. We are only stating about the devilish design of Respondent 3 to harass the appellants with the sole intent to avoid the payment of loan. When a citizen avails a loan from a financial institution, it is his obligation to pay back and not play truant or for that matter play possum. As we have noticed, he has been able to do such adventurous acts as he has the embedded conviction that he will not be taken to task because an application under Section 156(3) Cr.P.C. is a simple application to the court for issue of a direction to the investigating agency. We have been apprised that a carbon copy of a document is filed to show the compliance with Section 154(3), indicating it has been sent to the Superintendent of Police concerned.
29. 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 fellow citizens, efforts are to be made to scuttle and curb the same.
30. In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.
31. We have already indicated that there has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari [(2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.?
(Emphasis supplied)
33.In a recent pronouncement of this Court in the case of Babu Venkatesh v. The State Of Karnataka reported in (2022) 5 SCC 639, the observations made in Priyanka Srivastava (supra) were referred to and it was held as follows: ?24. This Court has clearly held that, a stage has come where applications under Section 156(3)Cr.P.C. are to be supported by an affidavit duly sworn by the complainant who seeks the invocation of the jurisdiction of the Magistrate. 25. This Court further held that, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also verify the veracity of the allegations. The Court has noted that, applications under Section 156(3)Cr.P.C. are filed in a routine manner without taking any responsibility only to harass certain persons. 26. This Court has further held that, prior to the filing of a petition under Section 156(3)Cr.P.C., there have to be applications under Sections 154(1) and 154(3)Cr.P.C.. This Court emphasises the necessity to file an affidavit so that the persons making the application should be conscious and not make false affidavit. With such a requirement, the persons would be deterred from causally invoking authority of the Magistrate, under Section 156(3)Cr.P.C.. Inasmuch as if the affidavit is found to be false, the person would be liable for prosecution in accordance with law.?
(Emphasis supplied)
34.In light of the judicial interpretation and evolution of Section 156(3) of the Cr.P.C. by various decisions of this Court as discussed above, it becomes clear that the changes introduced by Section 175(3) of the BNSS to the existing scheme of Section 156(3) merely codify the procedural practices and safeguards which have been introduced by judicial decisions aimed at curbing the misuse of invocation of powers of a Magistrate by unscrupulous litigants for achieving ulterior motives.?
12. With the above observation, the Supreme Court set aside the impugned order passed by the Magistrate, directing police investigation under Section 156(3) CrPC in a criminal appeal filed against the rejection of an application filed by the accused appellant in a case under Sections 323, 294, 500, 504 and 506 IPC against the appellant, who was a practicing advocate, and set aside the order of the High Court, passed under Section 482 CrPC, whereby the petition of the appellant for setting aside the impugned order passed by the trial court was dismissed.
13. This Court, in a recent judgment in Kamlesh Meena and others vs. State of U.P. and others, placing reliance on Full Bench judgment of this Court in Father Thomas vs. State of U.P. and Others also citing the judgment of the Hon?ble Apex Court in Om Prakash Ambedkar versus the State of Maharashtra and others and other leading cases on ambit and scope of the order on application under Section 156(3) CrPC, considered it in detail. This Court observed that in the latter part. Paragraphs 18 and 21 are extracted of as under:-
? 18. In the latter part of Section 173(4) of B.N.S.S., it is provided that "failing which such aggrieved person may make an application to the Magistrate". Aforesaid phrase used in Section 173(4) of B.N.S.S., in my opinion, clearly denotes that in case all the remedies as mentioned under sub-section 1, sub-section 3 and initial part of sub-section 4 of Section 173 B.N.S.S. are exhausted, applicant/aggrieved person has a right to move an appropriate application before the Magistrate, who, in turn, either proceed on the aforesaid application and issue a direction for police investigation after registering the F.I.R., or treat it as a complaint and proceed accordingly, or reject the same on merits. In the instant matter, learned Magistrate came to conclusion that the cognizable offence is made out against the opposite parties in the complaint, thus, it would be justified to issue a direction for registration of an F.I.R. and investigation of the matter.
21. In this conspectus, as above, I am of the considered view that the present applicants, who are the prospective accused, have no locus standi to assail the direction for investigation under Section 173(4) read with 175 (3) B.N.S.S. before the summoning/cognizance stage. There is neither any abuse of process of court nor any ground made out to pass an order to interfere with the complaint u/s 173(4) for securing the ends of justice, in exercise of the inherent jurisdiction of this Court under Section 528 B.N.S.S."
14. In Father Thomas versus State of UP and others, the Full Bench of this Court held that the initial order of the Magistrate under Section 156(3) CrPC peremptorily reminds the police to perform its duty and investigate a cognizable offence. The orders for investigation under Section 156(3) CrPC, are only ancillary step in aid of the investigation or trial and are clearly interlocutory in nature and are not amenable to challenge in a criminal revision in view of the bar contained in Section 397(2) of the Code. An order under Section 156(3) CrPC, issuing a direction to police to register a case and investigate, is not amenable to challenge in a criminal revision or an application under Section 482 CrPC. It is not necessary for this Court to go into further questions, whether the said order is administrative in nature as urged by counsel for the revisionist and the learned Government Advocate. The Full Bench further held that the order of Magistrate in exercise of power under Section 156(3) of the Code of Criminal Procedure directing the police to register and investigate is not open to revision at the instance of a person against whom neither cognizance has been taken nor any process issued.
15. Subsequently, a full bench of this court in Jagannath Verma and Others (supra) considered the judgment of Father Thomas (supra), and held that before the Full Bench in Father Thomas (supra), the controversy was whether a direction to the police to register a first information report in regard to a case involving a cognizable offense and for investigation is open to revision at the instance of a person suspected of having committed a crime, against whom neither cognizance has been taken nor any process issued. Such an order was held to be interlocutory in nature and, therefore, attracts the bar under subsection (2) of Section 397. An order of a Magistrate rejecting an application under Section 156(3) of the Court for the registration of the case by the police and for investigation is not an interlocutory order. Such an order is amenable to the remedy of a criminal revision under Section 397.
16. Amar Nath v. State of Haryana, AIR 1977 SC 2185 is a landmark judgement defining interlocutory orders. It has been defined in paragraph 6 as the term 'interlocutory order' in Section 397 (2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the rights of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in S. 397 of the 1973 Code. Thus, for instance, orders summoning witnesses. adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397 (2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court.
17. In Amar Nath's case, the order summoning the appellants in a mechanical manner after the police had submitted a final report against them leading to their release by the Judicial Magistrate, and the revision petition against the order of the Magistrate preferred before the Additional Sessions Judge by the complainant had also failed. Even the subsequent complaint by the complainant had been dismissed on merits. Against the dismissal of the latter complaint, the complainant preferred a revision. The Sessions Judge set aside the order of the Judicial Magistrate and remanded the case for further inquiry, whereupon the Magistrate straightaway summoned the appellants for trial. The High Court dismissed the revision of the complainant on premise that the judicial Magistrate's order being an interlocutory revision to the High Court was bared under Section 397(2). Since the Revision to the High Court was barred by Section 397(2), the High Court could not take up the case under Section 482 of the Cr.P.C. In Appeal, Hon' ble Supreme Court held that the order which appeared to infringe substantial rights acquired by the appellants was considered an order of moment and not a mere interlocutory order, which would invite the bar to entertaining the revision under S. 397(2) of the Code.
18. The scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Section 14A of the SC/SC Act provides as under:
"14A. Appeals (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an appeal shall lie, from any judgment. sentence or order, not being an interlocutory order, of a Special Court or an Exclusive Special Court, to the High Court both on facts and on law.
(2) Notwithstanding anything contained in sub-section (3) of section 378 of the Code of Criminal Procedure, 1973 (2 of 1974), an appeal shall lie to the High Court against an order of the Special Court or the Exclusive Special Court granting or refusing bail.
(3) Notwithstanding anything contained in any other law for the time being in force, every appeal under this section shall be preferred within a period of ninety days from the date of the judgment, sentence or order appealed from:
Provided that the High Court may entertain an appeal after the expiry of the said period of ninety days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of ninety days:
Provided further that no appeal shall be entertained after the expiry of the period of one hundred and eighty days.
(4) Every appeal preferred under sub-section (1) shall, as far as possible, be disposed of within a period of three months from the date of admission of the appeal.]"
19. Thus, on a bare perusal of aforesaid statutory provision for appeals under which present appeal has been preferred by the prospective accused against whom an order on application under Section 173 (4) BNSS for registration of case and investigation has been issued by learned Special Judge. It is obvious that appeal shall not lie from any interlocutory order. This provision corresponds to the provisions of Section 397(2) CrPC, which provides that the powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
20. From perusal of judgment of Hon'ble Supreme Court in Om Prakash Ambadkar vs. The State of Maharashtra and others an inference may be drawn that High Court can quash an order passed on application under Section 173(4) BNSS, in appropriate and exceptional cases, moved by a person aggrieved by inaction of police officer or refusal on their part to record the information referred in sub-section (1) of section 173, whereon, an order for registration of FIR and investigation by police is directed by filing a petition under Section 482 CrP.C. or 528 BNSS on ground that the procedural requirements provided under Section 173(4) and Section 175 (3) BNSS are not complied or on averments in the application, no cognizable offense is made out as stated in para 31 of the judgment (supra) as said procedure, practices and safeguards are introduced in aforesaid sections of BNSS to curb the misuse of invocation of powers of Magistrate by unscrupulous litigants for achieving ulterior motives and Hon'ble Court has also enjoined a duty of Magistrate to apply his mind judicially by considering both the complaints and submissions of police officer thereby ensuring that requirement of passing reasoned order on application under Section 173(4) BNSS is complied with in a more effective and comprehensive manner.
21. However, in the light of Full Bench pronouncements of this Court in Father Thomas (supra) and Jagannath Verma and others (supra), the impugned order being interlocutory in nature, the prospective accused is debarred from challenging the said order by way of filing a criminal revision or statutory appeal under Section 14-A(1) of the Act 1989. Consequently, the appeal preferred against impugned order by prospective accused/appellant is not maintainable and deserves to be dismissed at the stage of admission.
22. Appeal is hereby dismissed.
(Ram Manohar Narayan Mishra,J.) April 7, 2026 KR