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2026 DAILYLAW 4400 (ALL)

Parveen Bano v. State Of Up

2026-01-08

Chawan Prakash

body2026
JUDGMENT : CHAWAN PRAKASH, J. 1. Heard Sri Jitendra Kumar Srivastava, learned counsel for the revisionist, learned A.G.A. for the State and Sri Firdos Ahmad, Advocate holding brief of Sri Kanhaiya Lal Tiwari, learned counsel for the opposite party nos. 2 to 5 and perused the record. 2. The present criminal revision has been filed against the order dated 30.11.2023 passed by the learned Additional Sessions Judge/Special Judge (POCSO Act), Basti in Criminal Misc. Case No. 425 of 2023, under Section 156(3) Cr.P.C. (Parveen Bano Vs. Ajeej and others) whereby the application filed by the revisionist under Section 156(3) Cr.P.C. was treated as complaint case. 3. The brief facts of the case are that an application under Section 156(3) Cr.P.C. was filed by the informant Parveen Bano for registration of the F.I.R. but the said application was treated as complaint case by the learned Additional Sessions Judge/Special Judge, (POCSO Act), Basti vide order dated 30.11.2023. Feeling aggrieved by the said order, the present revision has been filed. 4. It is submitted by learned counsel for the revisionist that the opposite party nos. 2 to 5 are family members of the revisionist. On 17.09.2023 at about 9.45 A.M. when the revisionist was cleaning the back side of the house, the opposite party nos. 2 to 5 came there and due to old enmity they started abusing her. On being stopped by her, they started beating her by kicks and fists and when her daughter came to rescue her, they took her daughter with intention to commit illegal act and her clothes were torn. Thereafter they entered into house of the revisionist and started breaking articles and Rs.1500/- kept in Almirah were also taken away. An application was given to the police for registration of the F.I.R. and a copy of the same was also sent to the S.P. Basti but no report was registered by the police. Thereafter an application under Section 156(3) Cr.P.C. was moved by the revisionist before the learned Chief Judicial Magistrate, Basti but the learned Magistrate instead of passing the order under Section 156(3) Cr.P.C. for registration of the case, has registered the application as complaint case. It is further submitted that the revisionist Parveen Bano and her daughter Nagma were medically examined. Thereafter an application under Section 156(3) Cr.P.C. was moved by the revisionist before the learned Chief Judicial Magistrate, Basti but the learned Magistrate instead of passing the order under Section 156(3) Cr.P.C. for registration of the case, has registered the application as complaint case. It is further submitted that the revisionist Parveen Bano and her daughter Nagma were medically examined. It is next submitted that the learned Magistrate has committed an illegality in passing the impugned order and in view of the settled principles of law by the Hon'ble Apex Court in the case of Lalita Kumari Vs. State of Uttar Pradesh and others (2012) 4 Supreme Court Cases 1 , a prima facie case is made out against the accused persons and the impugned order is liable to be set aside. 5. Per contra, learned counsel for the opposite party nos. 2 to 5 and learned A.G.A. opposed the submissions made by learned counsel for the revisionist and submitted that the present application has been filed due to old family dispute about land partition. There is old rivalry between the parties and compromise has been entered many times and proceedings under Section 107/116 Cr.P.C. were initiated against the revisionist. A case No. 163 of 2019 (Karam Husain and others Vs. Ram Paltan and others) is also pending. The medical papers filed by the revisionist regarding injuries of Nagma are forged and fabricated. In fact, they have not received any injury due to the said incident. The learned Magistrate has not committed any illegality in passing the impugned order. The learned Magistrate is not bound to pass an order for registration of the F.I.R. and its investigation by police on each and every application under Section 156(3) Cr.P.C. and the said application could be registered as complaint case. 6. The main question of the learned counsel for the revisionist is as to whether the Magistrate is bound to pass order for registration of the F.I.R. and its investigation by the police on each and every application under Section 156(3) Cr.P.C. Section 156 (3) Cr.P.C. provides that any Magistrate empowered under Section 190 Cr.P.C. may pass order for registration of the F.I.R. and its investigation of a cognizable offence. Learned counsel for the revisionist mainly contended that a Magistrate was bound to pass an order for registration of the F.I.R. and its investigation by the police on the application under Section 156(3) Cr.P.C., as cognizable offence of serious nature requiring investigation is made out on the basis of averments made in that application. The contention of the learned counsel for the State and opposite party nos. 2 to 5 is that if the application under Section 156(3) Cr.P.C. contains the allegations of commission of cognizable offence, then the Magistrate is always under obligation to direct registration of the F.I.R. and its investigation. 7. The issue that the Magistrate is bound to pass an order for registration of the F.I.R. and its investigation by the police on each and every application under Section 156(3) Cr.P.C. containing allegations of a commission of cognizable offence is not 'res integra'. Now, as this controversy has been settled by a Division Bench of this Court in the case of Sukhwasi Vs. State of U.P. 2007 (59) ACC 739 . In the case of Smt. Mausam Vs. State of U.P. and others 2007 (7) ALJ 221 the single judges of this Court has taken a view that if an application under Section 156(3) Cr.P.C. discloses the commission of cognizable offence then the obligation of the Magistrate is to direct the registration of the F.I.R. on the basis of that application. This Court agreeing this view, following question was referred to the larger Bench in the case of Sukhwasi (supra) "whether a Magistrate is bound to pass an order on each and every application under Section 156(3) Cr.P.C. containing the allegations of commission of a cognizable offence for registration of the F.I.R. 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". 8. After having considered the Full Bench decision of this Court in the case of Ram Babu and others Vs. 8. After having considered the Full Bench decision of this Court in the case of Ram Babu and others Vs. State of U.P. 2001 (43) ACC 50 and many other cases, the Division Bench in the case of Sukhwasi (supra) has answered in paragraph 23 of the case 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." 9. In the present case, the learned Magistrate after perusal of the fact of this case declined to pass an order under Section 156(3) Cr.P.C. for registration of the F.I.R. but registered the said application as complaint case and registered the case for recording statement of the complainant under Section under Section 200 Cr.P.C. The learned Magistrate has not committed any illegality in passing the impugned order because it is in discretion of the learned Magistrate to register any application filed under Section 156(3) Cr.P.C. as complaint case. Hence, the revision lacks merits and is accordingly dismissed.