Neutral Citation No. - 2025:AHC:31364 Court No. - 73 Case :- APPLICATION U/S 528 BNSS No. - 7271 of 2025 Applicant :- Sandeep Kumar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Manoj Pathak Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J. 1. Heard learned counsel for the applicant and learned A.G.A. for the State. 2. This application u/s 528 B.N.S.S. has been preferred against the order dated 18.12.2023, passed by A.C.J.M., Court No. 6, Prayagraj, in application under Section 156(3) Cr.P.C., whereby the application filed by the applicant under Section 156(3) Cr.P.C. has been treated as a complaint case, as well as against the order dated 16.04.2024, passed in complaint case no. 543 of 2023, under Sections 323, 504, 506 I.P.C., whereby the opposite party Nos. 2 to 4 have been summoned for the aforesaid offences. 3. It has been argued by the learned counsel for the applicant that the applicant has filed an application under Section 156(3) Cr.P.C. against the opposite party Nos. 2 to 4, which was registered as a complaint case vide impugned order dated 18.12.2023. After that complainant (applicant herein) was examined under Section 200 Cr.P.C. and two witnesses were examined under Section 202 Cr.P.C. and there were allegations of outraging the modesty of the wife of applicant but despite that the opposite party Nos. 2 to 4 have been summoned only for the offence under Sections 323, 504, 506 I.P.C. Learned counsel has referred the statements of complainant (applicant herein) and of witnesses and submitted that a prima facie case under Section 376, 354 IPC is made out and thus, the impugned orders are liable to be set aside. 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. It may be stated here that as per the law laid down by a Division Bench of this Court in the case of Sukhwasi vs. State of U.P. reported in 2007 (59) ACC 739, it is clear 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 and he may or may not allow the application in his discretion and that the Magistrate has a discretion to treat an application under section 156(3) Cr.P.C. as a complaint. 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 (supra). In view of aforesaid legal position, it cannot be said that the impugned order dated 18.12.2023 is suffering from any material illegality or perversity. 7. So far impugned order dated 16.04.2024 is concerned, by that order opposite party Nos. 2 to 4 have been summoned for offence under Sections 323, 504, 506 I.P.C. It is well settled that at the stage of summoning the Magistrate has to carefully scrutinise the evidence brought on record in order to consider whether a prima facie case is made out or not. The Magistrate is not bound to summon the proposed accused persons under all the sections mentioned in the complaint, rather it is to be considered as to what specific offences are made out. In the instant matter perusal of record shows that the applicant has lodged the impugned complaint against the opposite party Nos. 2 to 4, alleging that on 17.09.2023 at about 11:00 AM they trespassed into his house and assaulted the applicant and when his wife tried to save him, the said opposite parties have caught her and did obscene acts against her. It was further alleged that the opposite parties have committed robbery in the house of the applicant and also made an attempt to commit rape upon his wife. It appears from the facts of the matter that the said opposite parties are brothers and both the parties are neighbours. In his statement under Section 200 Cr.P.C., applicant has not made any such specific allegation that the opposite parties have made an attempt to commit rape upon his wife and merely it was alleged that clothes of his wife were torn. Learned Magistrate has considered the facts of the matter and summoned the said opposite parties for the offence under Section 323, 504, 506 IPC vide impugned order dated 16.04.2024. In view of the attending facts and circumstances of the matter, it cannot be said that the impugned order dated 16.04.2024 is suffering from any illegality or perversity. There is nothing to show that there has been any abuse of process of Court or miscarriage of justice so as to require any interference by this Court in exercise of powers conferred under Section 528 B.N.S.S. 8. The application under Section 528 B.N.S.S. lacks merit and the same is accordingly dismissed. Order Date :- 5.3.2025 Anand Digitally signed by :- ANAND VERMA High Court of Judicature at Allahabad