# Kamlesh Meena & Ors v. State of U.P. & Ors

- **Citation:** (2025) 7 ILRA 196
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-07-25
- **Case number:** Application U/S 528 BNSS No. 25348 of 2025
- **Bench:** Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamlesh-meena-ors-v-state-of-u-p-ors-53482
- **Pages:** 12

## Headnote

Dharmendra Shukla, G.A., Sunil Kumar
Singh

Issue for Consideration
Issue
arose
for
consideration
whether
prospective
accused
against
whom
only
direction has been issued by Magistrate u/s
173(4) read with Section 175(3) of B.N.S.S.
2023, for registration of F.I.R. and investigation,
prior to stage of cognizance or issuance of
process, possesses any locus standi or legal
right to invoke inherent jurisdiction u/s 528
B.N.S.S. to challenge such order, and whether
Magistrate, while directing registration of F.I.R.,
had complied with procedural safeguards and
applied judicial mind in accordance with
statutory mandate.

Head Notes
Bharatiya Nagarik Suraksha Sanhita, 2023
- ss. 173(4), 175(3) - Applicants invoked
inherent jurisdiction of u/s 528 of B.N.S.S,
2023, seeking quashing of order dated
05.07.2025 passed by learned Special
Judge (S.C./S.T. Act)/Additional Sessions
Judge, whereby, in exercise of powers u/s
173(4) B.N.S.S., Station House Officer,
was directed to register F.I.R. and conduct
investigation on complaint of respondent
no. 2, a retired Bank Manager belonging
to Scheduled Caste community, alleging
that applicants, in conspiracy with others,
had fabricated and forwarded forged
complaint and documents in name of one
other person to higher bank authorities
with
intent
to
defame
and
falsely
implicate him - Applicants contended that
no cognizable offence was made out and
that
proceedings
were
instituted
to
obstruct
ongoing
departmental
action
against
complainant
for
alleged
embezzlement committed by him during
his service period whereas complainant
maintained
that
materials
disclosed
7 All. Kamlesh Meena & Ors. Vs. State of U.P. & Ors.
197
commission of serious and cognizable
offences warranting investigation.

Held:
Contention that procedure u/s 173 B.N.S.S. was
not followed or that Magistrate failed to apply
judicial mind is untenable - Record shows that
before moving application u/s 173(4) B.N.S.S,
respondent no. 2 approached concerned police
station and subsequently to Commissioner of
Police - Failed to get any relief, he moved
application u/s 173(4) B.N.S.S. supported by
affidavit
-
Learned
Magistrate,
exercising
discretion u/s 175(3) B.N.S.S. (corresponding to
Section 156(3) Cr.P.C.), conducted inquiry, called
for police report, concerned police station
reported that no F.I.R. registered regarding
offence alleged in application u/s 173(4)
B.N.S.S. and Magistrate further issued notice to
Chief General Manager u/s 175(4) B.N.S.S to
submit his report with regard to incident as
mentioned in complaint moved by respondent
no. 2. - In response, General Manager, who was
arrayed as opposite party no. 1 in complaint,
submitted detailed reply denying allegations -
Upon
consideration,
Magistrate
came
to
conclusion that investigation, if conducted by
police, would not affect official duty of opposite
parties arrayed in complaint and that all
procedural requirements u/s 173(4) and 175(3)
B.N.S.S. have fulfilled - No illegality committed
in entertaining application - Difficult to infer that
order was passed mechanically or perfunctory
without application of mind - Upon considering
complaint,
documents,
and
submissions,
Magistrate's reasons for directing investigation
u/s 173(3) B.N.S.S. are clearly reflected in
impugned order, supported by cogent reasons -
Applicants, being prospective accused, lack
locus
standi
to
challenge
direction
for
investigation u/s 173(4) and 175(3) B.N.S.S.
prior to summoning / cognizance stage. [Paras
12, 13, 20, 21 ] (E-13)

Case Law Cited
Om Prakash Ambadkar v. The State of
Maharashtra & Ors. (Criminal Appeal No.352
of 2020) decided by Supreme Court on January
16, 2025; Anil Kumar and others v. M. K.
Aiyappa, and others, (2013) 10 SCC 705;
Inspector Kamlesh Kumar Misra and another v.
State of U.P. and 9 others), u/a 227 No. 2138
of 2025, decided on dated 12.3.2025 - relied
on
Father Thomas v. State of U.P. and another,
2011 (1) ADJ 333 (FB); Lalita Kumari v.
Governme

## Text

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196 INDIAN LAW REPORTS ALLAHABAD SERIES
and such power can be exercised by this
Court in any proceeding before it, to make
such orders as may be necessary to give
effect to any order under this Code, or to
prevent abuse of the process of any Court
or otherwise to secure the ends of justice.

8. In exercise of its inherent powers
recognized under Section 482 Cr.P.C. this
Court can recall an order passed in any case
ex-parte, upon sufficient cause being
shown for non-appearance, when the case
was decided. However, in exercise of the
inherent powers, a Bench of this Court
cannot interfere in any order passed by
another Bench of the Court. The applicant
seeking recall of an order passed in any
case has to file a miscellaneous application
in the same case and he cannot file a fresh
case for this purpose.

9. Accordingly, I am of the considered
view that for seeking recall of an ex-parte
order passed in a Criminal Revision, the
petitioner should approach the same Court by
filing an application for recall of the order
and a separate application under Section 482
cannot be entertained for this purpose.

10. In view thereof, the application
under Section 482 Cr.P.C. is hereby
dismissed leaving it open to the petitioner
to file a suitable application in the Criminal
Revision which is said to have been
decided ex-parte.
---------
(2025) 7 ILRA 196
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.07.2025

BEFORE

THE HON'BLE DINESH PATHAK, J.

Application U/S 528 BNSS No. 25348 of 2025
Kamlesh Meena & Ors. ...Applicants
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicants:
Ravi Kant, Vatsala

Counsel for the Opposite Parties:
Dharmendra Shukla, G.A., Sunil Kumar
Singh

Issue for Consideration
Issue
arose
for
consideration
whether
prospective
accused
against
whom
only
direction has been issued by Magistrate u/s
173(4) read with Section 175(3) of B.N.S.S.
2023, for registration of F.I.R. and investigation,
prior to stage of cognizance or issuance of
process, possesses any locus standi or legal
right to invoke inherent jurisdiction u/s 528
B.N.S.S. to challenge such order, and whether
Magistrate, while directing registration of F.I.R.,
had complied with procedural safeguards and
applied judicial mind in accordance with
statutory mandate.

Head Notes
Bharatiya Nagarik Suraksha Sanhita, 2023
- ss. 173(4), 175(3) - Applicants invoked
inherent jurisdiction of u/s 528 of B.N.S.S,
2023, seeking quashing of order dated
05.07.2025 passed by learned Special
Judge (S.C./S.T. Act)/Additional Sessions
Judge, whereby, in exercise of powers u/s
173(4) B.N.S.S., Station House Officer,
was directed to register F.I.R. and conduct
investigation on complaint of respondent
no. 2, a retired Bank Manager belonging
to Scheduled Caste community, alleging
that applicants, in conspiracy with others,
had fabricated and forwarded forged
complaint and documents in name of one
other person to higher bank authorities
with
intent
to
defame
and
falsely
implicate him - Applicants contended that
no cognizable offence was made out and
that
proceedings
were
instituted
to
obstruct
ongoing
departmental
action
against
complainant
for
alleged
embezzlement committed by him during
his service period whereas complainant
maintained
that
materials
disclosed
7 All. Kamlesh Meena & Ors. Vs. State of U.P. & Ors.
197
commission of serious and cognizable
offences warranting investigation.

Held:
Contention that procedure u/s 173 B.N.S.S. was
not followed or that Magistrate failed to apply
judicial mind is untenable - Record shows that
before moving application u/s 173(4) B.N.S.S,
respondent no. 2 approached concerned police
station and subsequently to Commissioner of
Police - Failed to get any relief, he moved
application u/s 173(4) B.N.S.S. supported by
affidavit
-
Learned
Magistrate,
exercising
discretion u/s 175(3) B.N.S.S. (corresponding to
Section 156(3) Cr.P.C.), conducted inquiry, called
for police report, concerned police station
reported that no F.I.R. registered regarding
offence alleged in application u/s 173(4)
B.N.S.S. and Magistrate further issued notice to
Chief General Manager u/s 175(4) B.N.S.S to
submit his report with regard to incident as
mentioned in complaint moved by respondent
no. 2. - In response, General Manager, who was
arrayed as opposite party no. 1 in complaint,
submitted detailed reply denying allegations -
Upon
consideration,
Magistrate
came
to
conclusion that investigation, if conducted by
police, would not affect official duty of opposite
parties arrayed in complaint and that all
procedural requirements u/s 173(4) and 175(3)
B.N.S.S. have fulfilled - No illegality committed
in entertaining application - Difficult to infer that
order was passed mechanically or perfunctory
without application of mind - Upon considering
complaint,
documents,
and
submissions,
Magistrate's reasons for directing investigation
u/s 173(3) B.N.S.S. are clearly reflected in
impugned order, supported by cogent reasons -
Applicants, being prospective accused, lack
locus
standi
to
challenge
direction
for
investigation u/s 173(4) and 175(3) B.N.S.S.
prior to summoning / cognizance stage. [Paras
12, 13, 20, 21 ] (E-13)

Case Law Cited
Om Prakash Ambadkar v. The State of
Maharashtra & Ors. (Criminal Appeal No.352
of 2020) decided by Supreme Court on January
16, 2025; Anil Kumar and others v. M. K.
Aiyappa, and others, (2013) 10 SCC 705;
Inspector Kamlesh Kumar Misra and another v.
State of U.P. and 9 others), u/a 227 No. 2138
of 2025, decided on dated 12.3.2025 - relied
on
Father Thomas v. State of U.P. and another,
2011 (1) ADJ 333 (FB); Lalita Kumari v.
Government of Uttar Pradesh, (2014) 2 SCC 1;
Jagannath Verma and others v. State of UP and
another, AIR 2014 Allahabad 214 (FB);
Kailash Vijayvargiya v. Rajlakshmi Chaudhuri and
Others, 2023 SCC Online SC 569 - referred
to

Ravinder Lal AIRI v. S. Shalu Construction PVT.
LTD and others , decided by Single Bench, Delhi
High Court, vide order dated January 24, 2023
in W.P. (CRL) 209/2023, CRLMA 1951 of
2023; Imran Pratapgadhi v. State of Gujarat
and another, 2025 SCC Online SC 678 -
distinguished

List of Acts
Bharatiya Nagarik Suraksha Sanhita,
2023.

List of Keywords
Direction
for
registration
of
F.I.R.
and
investigation;
Maintainability;
Complainant;
Scheduled Caste community; Travel bills; Travel
agency
owner;
Forged
signature;
Bank
authorities; Criminal conspiracy; Prima facie
cognizable offence; Application of judicial mind;
Perfunctory or mechanical manner; Competent
police officer; Locus standi; Conspired to
humiliate complainant and falsely implicated;
False and forged complaint; Embezzlement;
Departmental
proceedings;
Summoning/
cognizance stage.

Case Arising From
ORIGINAL JURISDICTION: Application U/s 528
B.N.S.S. No. - 25348 of 2025

From the Judgment and Order dated 05.07.2025
of Special Judge (S.C./ S.T. Act)/ Additional
Session Judge, Agra, in Criminal Misc. Case
No.3140 of 2025

Appearances for Parties
Advs. for the Applicant:
Ravi Kant, Vatsala

Adv. for the Opposite Party:
Dharmendra Shukla, G.A., Sunil Kumar Singh
198 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Dinesh Pathak, J.)

1. Heard Ms Vatsala, learned counsel
for the applicants and Sri Anil Tiwari,
learned Senior Advocate, assisted by Sri
Dharmendra Shukla, learned counsel for
the respondent no.2 and learned AGA for
the State respondent no.1, and perused the
record.

2. The applicants have invoked the
inherent jurisdiction of this Court under
Section 528 B.N.S.S. for quashing the
impugned order dated 05.07.2025 passed
by the learned Special Judge (S.C./S.T.
Act)/ Additional Session Judge, Agra,
passed in Criminal Misc. Case No.3140
of 2025 (Criminal Misc. Application
No.251 of 2025) (Veerendra Singh Vs.
G.M. Amrendra Kumar & Another),
under Section 173(4) of B.N.S.S., 2023,
Police Station- Etmaauddaulaa, District
Agra, whereby SHO Etmaauddaulaa,
Police Commissionerate, Agra, has been
directed to register an F.I.R. against the
present applicants and investigate the
same.

3.
Learned
Senior
Counsel
for
respondent No. 2 has raised a preliminary
objection with regard to maintainability of
the instant application at the behest of the
prospective accused, assailing the order
dated 5.7.2025, whereby a simple direction
has been issued for registration of the F.I.R.
and investigation of the matter. Thus, with
the consent of the parties, maintainability
of the instant application at the behest of
the prospective accused, before issuance of
process or taking of cognizance, is being
heard and decided.

4. Record evinces that the respondent
no.
2
(complainant)
has
moved
an
application under Section 173(4) B.N.S.S.
with the prayer that Station House Officer
(SHO), Police Station- Etmaauddaulaa,
Agra, may be directed to investigate the
matter
after
registering
the
written
complaint of the applicant/complainant. In
his application, the respondent no.2 came
with the plea that:-

(i) He retired from the post of
Manager in January 2019 after rendering
39 years of service in the Bank of India,
and belongs to the Scheduled Caste
community.

(ii) The opposite party, Amrendra
Kumar (accused), harbours a long-standing
enmity against the applicants and, in
conspiracy with other opposite parties,
namely, Jeevan Kamle, Kamlesh Meena
and Anjani Kumar, attempted to defame
and falsely implicated him in a fabricated
case. To that end, a false, fabricated and
forged complaint letter was sent in the
name of one Ramesh Chand, bearing his
forged signature, to the Chairman and
Managing Director of the Bank, requesting
an inquiry.

(iii) Additionally, the travel bills
sanctioned by the Bank in favour of the
applicants were sent for verification to Sri
Sanjeet
Kumar,
Assistant
General
Manager, Field General Manager, and
others. After verification, the travel agency
owner, Jitendra Singh, was allegedly
coerced by the said officers to declare the
bills as forged, but Jitendra Singh stated
that no forged bill had ever been prepared
at his establishment.

(iv) In support of the complaint,
the complainant has attached the copies of
the forged and fabricated applications,
affidavits of Ramesh Chandra and Jitendra
Singh and other relevant documents.
7 All. Kamlesh Meena & Ors. Vs. State of U.P. & Ors.
199

5.
The
learned
Special
Judge
(S.C./S.T. Act)/Additional Session Judge,
Agra, after perusal of the documents and
the statement of witnesses, came to the
conclusion that the complainant is a
member of the Scheduled caste community
and had retired from the post of Bank
Manager in the year 2019 after 39 years of
service. The opposite parties (applicant
herein),
who
are
also
officers
and
employees of the bank, conspired to
humiliate the complainant and falsely
implicated him in criminal cases by
fabricating and filing a false and forged
complaint under the name of one Ramesh
Chand, whose identity could not be
verified. Regarding the alleged fake bills, it
is clear that such complaints could only
have been made by bank authorities
themselves, as the documents in question
were in the custody of the bank. Thus,
learned
court
concerned
has
finally
concluded that, in such a situation, it is
evident that a criminal conspiracy was
committed by the opposite parties/accused
with
the
intention
to
cheat,
forge
documents, to use forged documents as
genuine, defame the complainant, and
commit offences under the Scheduled
Castes
and
the
Scheduled
Tribes
(Prevention of Atrocities) Act.

6. In this backdrop of the facts, the
learned court concerned was of the view
that these offences are of a serious and
cognizable nature; therefore, it is deemed
necessary that an investigation into the
allegations against the opposite parties be
conducted by a competent police officer.
As such, the court concerned has allowed
the application under Section 173 (4) of
B.N.S.S., treating it as maintainable and
issued a direction for registration of an
F.I.R. at the concerned police station and to
conduct a proper investigation, vide his
order dated 05.07.2025, which is under
challenge before this court.

7. Learned counsel for the applicants
submits that the procedure as enunciated
under Sections 173 and 175 of B.N.S.S. has
not properly been followed by the learned
court below before issuing a direction to
lodge an F.I.R. and investigate the same;
therefore, the instant application under
Section 528 of B.N.S.S. is maintainable. It
is further submitted that departmental
proceedings are going on against the
respondent
No.
2
for
the
alleged
embezzlement committed by him during
his service period, and the application
under Section 173(4) of B.N.S.S. has been
moved
to
impede
the
departmental
proceedings. Therefore, in the light of the
facts that no cognizable offence is made out
against the present applicants for issuing a
direction
to
register
an
F.I.R.
and
investigate the matter, there is no legal
sanctity in moving the application under
Section 173(4) B.N.S.S. In support of her
submission,
learned
counsel
for
the
applicants has placed reliance upon the
case of Om Prakash Ambadkar v. The
State of Maharashtra & Ors. (Criminal
Appeal No.352 of 2020) decided by the
Hon'ble Supreme Court on January 16,
2025, the case of Imran Pratapgadhi v.
State of Gujarat and another, Criminal
Appeal No. 1545 of 2025, decided by the
Hon'ble Supreme Court on March 28, 2025,
reported in 2025 SCC Online SC 678, the
case of Anil Kumar and others Vs. M. K.
Aiyappa, and others, decided by Hon'ble
Supreme Court reported in (2013) 10 SCC
705, and case of Hon. Delhi High Court,
decided by Single Bench, vide order dated
January 24, 2023 in W.P. (CRL) 209/2023,
CRLMA 1951 of 2023 in Ravinder Lal
AIRI Vs. S. Shalu Construction PVT.
LTD and others and the Matters under
200 INDIAN LAW REPORTS ALLAHABAD SERIES
Article 227 No. 2138 of 2025 (Inspector
Kamlesh Kumar Misra and another Vs.
State of U.P. and 9 others), decided by the
Hon'ble coordinate bench of this court, vide
order dated 12.3.2025.

8. Per contra, learned Senior Counsel
for the respondent no. 2 has vehemently
opposed the submissions advanced by
learned counsel for the applicant and
contended that in view of the ratio decided
by the full bench of this court in the matter
of Father Thomas v. State of U.P. and
another, reported in 2011 (1) ADJ 333
(FB) instant application under Section 528
B.N.S.S. is not maintainable against the
direction of the court concerned for lodging
an F.I.R. and conducting an investigation.
It is next submitted that at this juncture,
nothing has been decided finally against the
present applicants who are the prospective
accused; therefore, they have no right to
impede the investigation as per the
direction of the court concerned. It is
further submitted that on the face of the
complaint moved by the respondent no. 2, a
cognizable offence is made out against the
present applicants. Thus, the learned court
concerned has rightly acknowledged the
same and issued a direction for lodging an
F.I.R. and conducting an investigation.
Present applicants still have an opportunity
to cooperate with the investigation and put
up their defence. Mere a direction for
lodging of an F.I.R. does not confer any
legal right in favour of the present
applicants
to
invoke
the
inherent
jurisdiction of this Court. There is no abuse
of the process of court or apparent illegality
in the order passed by the court concerned
to entertain the instant application in
exercise of powers under Section 528
B.N.S.S. He has tried to distinguish the
case laws, as mentioned above, cited on
behalf of the applicants.

9.
Having
considered
the
rival
submissions advanced by learned counsel
for the parties and upon the perusal of
record it is manifest that having been
aggrieved with the false, fabricated and
forged
complaint
moved
against
the
respondent no. 2 to the higher bank
authorities under the name of one Ramesh
Chandra, he has approached to the police
officer in charge of the concerned police
station to lodge an F.I.R. However, while
the police report has not been lodged, he
has made the complaint dated 7.2.2025 to
the Commissioner of Police at Agra. When
the respondent no.2 has not received any
response from the higher police authority,
he has moved an application under Section
173(4) of B.N.S.S. Having found that a
cognizable offence is made out against the
prospective accused (applicants herein),
learned
Special
Judge,
S.C./S.T.
Act/Additional Sessions Judge, Agra has
issued a direction for registration of the
F.I.R. and investigation of the case. Based
on the submissions advanced by learned
counsel for the parties, question involved in
the instant application lies in a narrow
compass as to whether the prospective
accused, the person, who is suspected of
having committed the crime is entitled to
an opportunity of being heard against the
order of lodging an F.I.R. and investigation
of the matter passed by learned Magistrate
in deciding the application under Section
173 (4) of B.N.S.S. Needless to say, that in
the previous law, i.e. Criminal Procedure
Code (hereinafter referred to as 'Cr.P.C.'),
the duty was entrusted upon the police
authorities to lodge an F.I.R. under Section
154 Cr.P.C. In the case of Lalita Kumari
vs. Government of Uttar Pradesh, (2014)
2 SCC 1, the Hon'ble Supreme Court has
elucidated the scope of Section 154 Cr.P.C.
in detail, pointing out the solemn duty of
7 All. Kamlesh Meena & Ors. Vs. State of U.P. & Ors.
201
the police authorities. Paragraph 119 of the
aforesaid judgment is quoted hereinbelow:

"Therefore, in view of various
counterclaims regarding registration or
non-registration, what is necessary is only
that the information given to the police
must
disclose
the
commission
of
a
cognizable offence. In such a situation,
registration of an F.I.R. is mandatory.
However, if no cognizable offence is made
out in the information given, then the F.I.R.
need not be registered immediately, and
perhaps the police can conduct a sort of
preliminary verification or inquiry for the
limited purpose of ascertaining whether a
cognizable offence has been committed.
But, if the information given clearly
mentions the commission of a cognizable
offence, there is no other option but to
register
an
F.I.R.
forthwith.
Other
considerations are not relevant at the stage
of registration of F.I.R., such as whether
the information is falsely given, whether the
information
is
genuine,
whether
the
information is credible etc. These are the
issues that have to be verified during the
investigation of the F.I.R. At the stage of
registration of F.I.R., what is to be seen is
merely whether the information given ex
facie discloses the commission of a
cognizable offence. If, after investigation,
the information given is found to be false,
there is always an option to prosecute the
complainant for filing a false F.I.R."

10. Under the new law i.e. Bharatiya
Nagrik Suraksha Sanhita, 2023 (in brevity,
'B.N.S.S.'), the corresponding provisions
of the aforesaid Section 154 Cr.P.C. are
enunciated under Section 173 of B.N.S.S.
Likewise,
previous
provisions
under
Section 156(3) of Cr.P.C., in relation to
entertaining the complaint by the learned
Magistrate, are enunciated under Section
175(3) of B.N.S.S. While comparing both
sections i.e. 156 Cr.P.C. and 175 B.N.S.S.,
Hon'ble Supreme Court in the case of Om
Prakash
Ambadkar
(supra)
has
expounded the provisions of Section 175
B.N.S.S. which corresponds to Section 156
Cr.P.C. Relevant paragraph Nos. 29 and 30
of the aforesaid judgment are quoted herein
below:

"29. Section 175 of the B.N.S.S.
corresponds to Section 156 of the Cr.P.C.
Sub-section (1) of Section 175 of the
B.N.S.S. 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. Subsection (2) of Section 175 the B.N.S.S. is
identical to Section 156(2) of the Cr.P.C.
Section 175(3) of the B.N.S.S. empowers
any Magistrate who is empowered to take
cognizance u/s210 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 u/s175(3) of
the B.N.S.S., 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
B.N.S.S.;

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 B.N.S.S. is a new addition to the
202 INDIAN LAW REPORTS ALLAHABAD SERIES
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
B.N.S.S. 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."

11. However, in paragraph No. 31 of
the case of Om Prakash Ambadkar
(supra), Hon'ble Supreme Court, while
comparing section 175(3) of BNSS with
Section 156(3) Cr.P.C., has pointed out
three prominent changes that have been
introduced by the enactment of the
B.N.S.S., which is quoted hereinbelow:

"31. A comparison of Section
175(3) of the B.N.S.S. with Section 156(3)
of the Cr.P.C. indicates three prominent
changes that have been introduced by the
enactment of B.N.S.S. 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 F.I.R. has been made mandatory,
and the applicant making an application
u/s 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 u/s 175(3).

b. Secondly, the Magistrate has
been empowered to conduct such enquiry
as he deems necessary before making an
order directing registration of F.I.R.

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 F.I.R.
before issuing any directions u/s 175(3)."

12. I am sceptical of the submissions
advanced by the learned counsel for the
applicants
that
proper
procedure
as
enunciated under Section 173 of B.N.S.S.
has not been followed, and the learned
Magistrate, while passing the order for
registration of the F.I.R. and investigation
of the matter, has not applied his judicial
mind. It is evident from the record that
before moving an application under Section
173(4) B.N.S.S., the respondent no. 2 had
approached the police station concerned
and subsequently to the Commissioner of
Police, Commissionerate Agra. Having
failed to get any relief, ultimately, he has
moved the application under Section 173(4)
B.N.S.S., supported with an affidavit
narrating the details of his plight.

13. The learned Magistrate, in exercise
of his discretionary power under Section
175(3) of B.N.S.S. (old provision 156(3)
Cr.P.C.), has conducted an inquiry. He has
called for a report from the concerned
police station. In response to the query
made by learned magistrate, a report has
7 All. Kamlesh Meena & Ors. Vs. State of U.P. & Ors.
203
been submitted by the concerned police
station that no F.I.R. has been lodged with
respect to the occurrence of offence as
mentioned in the application under Section
173(4) B.N.S.S. Notice has been issued to
the Chief General Manager of the bank as
well, in pursuance of Section 175(4) of
B.N.S.S., to submit his report with regard
to the incident as mentioned in the
complaint moved by the respondent no. 2.
However, in place of the Chief General
Manager, the General Manager of the bank,
namely, Amrendra Kumar, who was
arrayed as opposite party no. 1 in the
complaint, has submitted a detailed reply in
the form of a report and denied all the
allegations as made in the complaint.
Learned Magistrate has discussed in detail
the objection/reply submitted by the
General
Manager,
Amrendra
Kumar
(opposite party no. 1 in complaint) and
came to the conclusion that investigation, if
conducted by the police, would not affect
the official duty of the opposite parties
arrayed in the complaint. Prima facie, all
the essential conditions, as required to
entertain the application under Section
173(4) read with Section 175(3) B.N.S.S.,
have been fulfilled; therefore, the learned
Magistrate has not committed any illegality
in entertaining said application.

14. Learned counsel for the applicants
has emphasized on the judgment of Om
Prakash Ambadkar (supra) and submits
that Hon'ble Apex Court has set aside the
order passed by the Magistrate concerned
directing the police investigation under
Section 156(3) of Cr.P.C.; thus, order
passed under Section 173 (4) to register an
F.I.R. and for investigation is open to be
assailed at the behest of the person who is
suspected of having committed the crime.
In the cited case, the application moved
under Section 156(3) Cr.P.C. has been
allowed with a direction for registration of
the F.I.R. and investigation of the matter
under Sections 323, 294, 500, 504 and 506
IPC. Aforesaid order was affirmed by
Hon'ble High Court in application under
Section 482 Cr.P.C. Hon'ble Supreme
Court, having considered the entire case in
detail, came to the conclusion that learned
Magistrate has not properly applied his
judicial mind in allowing the application
under Section 156(3) Cr.P.C., and has
succinctly observed that no cognizable
offence is made out in the facts and
circumstances of the case as averred by the
applicant in his application under Section
156(3) Cr.P.C. Thus, in this backdrop of
the case, Hon'ble Supreme Court has set
aside the order passed by the learned
Magistrate as well as the order passed by
the Hon'ble High Court.

15. It is apposite to mention that locus
standi of the prospective accused to assail
the order for registration of the F.I.R. and
investigation of the matter under section
156(3)
Cr.P.C.
(new
section
175(3)
B.N.S.S.), before cognizance and issuance
of process, was neither in question nor
discussed by the Hon'ble Apex Court in the
case of Om Prakash Ambadkar (supra).
The full Bench of this Court in the case of
Father Thomas v. State of UP and
another, 2011(1) ADJ 33 (FB), while
replying the question No. 1, came to the
conclusion that the prospective accused
have no locus to challenge the order passed
under Section 156(3) Cr.P.C. before cognizance or issuance of process against him.
Paragraph No. 32 of the aforesaid judgment
is quoted hereinbelow:

"32. In the light of the aforesaid
discussion, it is abundantly clear that the
prospective accused has no locus standi to
challenge a direction for investigation of a
204 INDIAN LAW REPORTS ALLAHABAD SERIES
cognizable case under Section 156(3)
Cr.P.C before cognizance or issuance of
process against the accused. The first
question is answered accordingly."

16. More so, on the flip side, while the
rejection of the application under Section
156(3)
Cr.P.C.
is
assailed
by
the
applicant/complainant,
the
prospective
accused has full right to contest the case at
the higher stage, as per ratio decided by
Hon'ble Full Bench of this Court in the
matter of Jagannath Verma and others
vs. State of UP and another, AIR 2014
Allahabad 214 (FB).

17.
In
the
case
of
Kailash
Vijayvargiya Vs. Rajlakshmi Chaudhuri
and Others, decided on May 4, 2023, in
Criminal Appeal No. 1581 of 2021,
reported in 2023 SCC Online SC 569, the
Hon'ble Supreme Court has elucidated the
pre-cognizance stage and post-cognizance
stage. It has been observed that if the
Magistrate finds that the allegation made
before him discloses the commission of
cognizable offence, he can forward the
complaint to the police for investigation
under Section 156(3) Cr.P.C. and, thereby,
save valuable time of the Magistrate from
being wasted in inquiry as it is preliminary
duty of the police to investigate. In
paragraph
No.
84
of
the
aforesaid
judgment, the Hon'ble Supreme Court has
unequivocally observed that the accused
does not have any right to appear before the
Magistrate before summons are issued.
Relevant paragraph Nos. 69, 73, 74, 75, 80,
81 and 84 of the aforesaid judgment are
quoted herein below:

"69. In Ramdev Food Products
Private Limited (supra), examining whether
discretion of the Magistrate to call for a report
u/s202 instead of directing investigation under
Section 156(3) is controlled by any defined
parameters, it was held thus:

"22. Thus, we answer the F.I.R.st
question by holding that:

22.1. The direction under Section
156(3) is to be issued, only after application of
mind by the Magistrate. When the Magistrate
does not take cognizance and does not find it
necessary to postpone the issuance of process
and finds a case made out to proceed
forthwith, direction under the said provision is
issued. In other words, where on account of
credibility of information available, or
weighing the interest of justice it is considered
appropriate
to
straightaway
direct
investigation, such a direction is issued.

22.2. The cases where Magistrate
takes cognizance and postpones issuance of
process are cases where the Magistrate has
yet to determine "existence of sufficient ground
to proceed". Category of cases falling under
para 120.6 in Lalita Kumari [Lalita Kumari v.
State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC
(Cri) 524] may fall u/s202.

22.3. Subject
to
these broad
guidelines available from the scheme of the
Code, exercise of discretion by the Magistrate
is guided by interest of justice from case to
case."

73. As to the scope of power of the
Magistrate to direct an FIR under Section
156(3), this court in Mohd. Yusuf v. Afaq
Jahan (Smt), (2006) 1 SCC 627 opined that:

"11. The clear position therefore
is that any Judicial Magistrate, before
taking cognizance of the offence, can order
investigation under Section 156(3) of the
Code. If he does so, he is not to examine
the complainant on oath because he was
7 All. Kamlesh Meena & Ors. Vs. State of U.P. & Ors.
205
not taking cognizance of any offence
therein. For the purpose of enabling the
Police to start investigation it is open to the
Magistrate to direct the Police to register
an FIR. There is nothing illegal in doing
so. After all registration of an FIR involves
only the process of entering the substance
of
the
information
relating
to
the
commission of the cognizable offence in a
book kept by the officer in charge of the
Police station as indicated in Section 154
of the Code. Even if a Magistrate does not
say in so many words while directing
investigation under Section 156(3) of the
Code that an FIR should be registered, it is
the duty of the officer in charge of the
Police station to register the FIR regarding
the cognizable offence disclosed by the
complainant because that Police officer
could take further steps contemplated in
Chapter XII of the Code only thereafter."

74. In Anju Chaudhary (supra),
this court analysing the power of the
Magistrate under Section 156(3) observed:

"41.
Thus,
the
Magistrate
exercises a very limited power under
Section 156(3) and so is its discretion. It
does not travel into the arena of merit of
the case if such case was fit to proceed
further. This distinction has to be kept in
mind by the court in different kinds of
cases...."

75. In HDFC Securities Ltd. v.
State of Maharashtra, (2017) 1 SCC 640,
this court while interpreting the words
"may take cognizance" and Section 156(3),
held:

"24. Per contra, the learned
counsel for Respondent 2 submitted that the
complaint has disclosed the commission of
an offence which is cognizable in nature
and in the light of Lalita Kumari case
[Lalita Kumari v. State of U.P., (2014) 2
SCC 1 : (2014) 1 SCC (Cri) 524],
registration of F.I.R. becomes mandatory.
We observe that it is clear from the use of
the words "may take cognizance" in the
context in which they occur, that the same
cannot be equated with "must take
cognizance".
The
word
"may"
give
discretion to the Magistrate in the matter.
If on a reading of the complaint he finds
that the allegations therein disclose a
cognizable offence and that the forwarding
of the complaint to the police for
investigation under Section 156(3) will be
conducive to justice and save the valuable
time of the Magistrate from being wasted in
enquiring into a matter, which was
primarily the duty of the police to investigate, he will be justified in adopting
that course as an alternative to taking
cognizance of the offence, himself. It is
settled that when a Magistrate receives a
complaint, he is not bound to take
cognizance if the facts alleged in the
complaint, do not disclose the commission
of an offence."

80. The State of West Bengal has
drawn our attention to the judgment of this
Court in Gopal Das Sindhi v. State of
Assam, AIR 1961 SC 986 to the effect that
even when a private complaint is filed, the
Magistrate is not bound to take cognizance
u/s190 as the word used therein is 'may',
which should not be construed as 'must' for
obvious reasons. The Magistrate may well
exercise
discretion
in
sending
such
complaint under Section 156(3) to the
police for investigation. However, when a
Magistrate chooses not to proceed under
Section 156(3), he cannot simply dismiss
the complaint if he finds that resorting to
Section 156(3) is not advisable. Reference
in this regard can also be made to Suresh
206 INDIAN LAW REPORTS ALLAHABAD SERIES
Chand Jain v. State of M.P., (2001) 2 SCC
628 which distinguishes between the power
of the police to investigate u/s156, the
direction of the Magistrate for investigation
under Section 156(3) and post-summoning
inquiry and investigation after cognizance
u/s190 and Section 202 of the Code. When
a Magistrate orders investigation under
Section
156(3),
he
does
so
before
cognizance of the offence. If he takes
cognizance, he needs to follow the
procedure envisaged in Chapter XV (see
Afaq Jahan (supra).

81. The decision in Mona Panwar
v. High Court of Judicature of Allahabad
through its Registrar, (2011) 3 SCC 496 is
rather succinct. This Court held that when
a
complaint
is
presented
before
a
Magistrate, he has two options. One is to
pass an order contemplated by Section
156(3). The second one is to direct
examination of the complainant on oath and
the witness present, and proceed further in the
manner provided by Section 202. An order
under Section 156(3) is in the nature of a
peremptory reminder or intimation to the
police to exercise its plenary power of
investigation u/s156(1). However, once the
Magistrate has taken cognizance u/s190 of the
Code, he cannot ask for an investigation by the
Police. After cognizance has been taken, if the
Magistrate wants any investigation, it will be
u/s202, whose purpose is to ascertain whether
there is prima facie case against the person
accused of the offence and to prevent issue of
process in a false or vexatious complaint
intended to harass the person named. Such
examination is provided, therefore, to find out
whether there is or not sufficient ground for
proceeding further.

84. We would refrain and not
comment on the allegations made as this
may affect the case put up by either side.
The accused do not have any right to
appear before the Magistrate before
summons are issued. However, the law
gives them a right to appear before the
revisionary court in proceedings, when the
complainant challenges the order rejecting
an application under Section 156(3) of the
Code. The appellants, therefore, had
appeared before the High Court and
contested the proceedings. They have filed
several papers and documents before the
High Court and this Court. To be fair to
them, the copies of the papers and
documents filed before the High Court and
this Court would also be forwarded and
kept on record of the Magistrate who
would, thereupon, examine and consider
the
matter.
However,
the
complainant/informant would be entitled to
question the genuineness and the contents
of the said documents."

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 subsection 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.
7 All. Abdul Hameed Vs. State of U.P.
207

19. The view expressed by learned
Single Judge of Delhi High Court in the
matter of Ravinder Lal Airi (supra), cited
by learned counsel for the applicants, is
contrary to the Full Bench decision of this
Court in the matter of Father Thomas
(supra), therefore, in my opinion, same is
not liable to be considered. Facts and
circumstances of the case of Imran
Pratapgadhi (supra), cited by learned
counsel for the applicants are quite
distinguishable
from
the
given
circumstances of the present case.

20. Having considered the impugned
judgment passed by the learned Magistrate,
I am of the view that it would be difficult to
infer that the order has been passed in a
perfunctory or mechanical manner without
application of mind. He has discussed the
case in detail, having considered the reply
submitted by General Manager of the Bank,
namely, Amrendra Kumar (opposite party
no.1 in the complaint), police report and
other documents, and expressed his view
that prima facie cognizable offence appears
to have committed by the opposite parties
and in such a case registration of an F.I.R.
at the concerned police station and
conducting appropriate investigation is
justified.
After
going
through
the
complaint, documents and hearing the
complainant, what weighed with the
Magistrate to order an investigation under
173(3) B.N.S.S., has succinctly been
reflected in the order under challenge. He
has assigned cogent reasons for the
requirement of 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.