# Pradeep Kumar v. State of U.P. & Ors

- **Citation:** (2026) 2 ILRA 835
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-02-12
- **Case number:** Application U/S 528 BNSS. No. 18266 of 2025
- **Bench:** Rajiv Lochan Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pradeep-kumar-v-state-of-u-p-ors-54210
- **Pages:** 11

## Text

2 All. Pradeep Kumar Vs. State of U.P. & Ors.
835
(2026) 2 ILRA 835
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.02.2026

BEFORE

THE HON'BLE RAJIV LOCHAN SHUKLA, J.

Application U/S 528 BNSS. No. 18266 of 2025

Pradeep Kumar ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

ISSUE FOR CONSIDERATION
Whether the Chief Judicial Magistrate rightly treated the application moved under Section 175(3) BNSS as a
complaint instead of directing police investigation?

HEADNOTES
Criminal Law - Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 175(3), 175(4), 210, 528, 529, - Code of
Criminal Procedure, 1973 - Sections 154(3), 156(3), 202(1), 173(2), 190 - Indian Evidence Act, 1872 -
Section - 27: - Application under Section 528 BNSS - for quashing the impugned order - whereby the
learned CJM in an arbitrary, manner treated the application moved under section 175(3) BNSS as a complaint,
while the matter required police investigation - allegations of grievous assault leading to amputation -
applicant pleaded that custodial interrogation, recovery of motorcycle, weapon, and spot inspection required -
Magistrate found no such evidence recoverable after lapse of time and held complainant had full knowledge of
facts - reliance placed on Sukhwasi, Ram Babu Gupta, Lala Ram - Court finds that, principles governing
Section 156(3) Cr.P.C. still apply under Section 175(3) BNSS, though procedure now requires affidavit and
inquiry - Magistrate has discretion, not bound to order FIR in every case - held, order treating application as
complaint is valid - hence, application is dismissed. (Para - 13, 18, 19, 20)
Application Dismissed. (E-11)
CASE LAW CITED
Sukhwasi v. State of U.P., 2007 (59) ACC 739 / (2007) 6 ALJ 424 (DB).
Ram Babu Gupta v. State of U.P., (2001) ACC 201 (Full Bench).
Priyanka Srivastava v. State of U.P., (2015) 6 SCC 287.
Lala Ram v. State of U.P., 2021 (1) ADJ 145.
Suresh Chand Jain (SC).
Mohan Shukla v. State of U.P. (Allahabad HC).
Ram Sabad v. Sessions Judge, Bahraich (Allahabad HC).
Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1.

LIST OF ACTS
Bhartiya Nagarik Suraksha Sanhita, 2023 - Code of Criminal Procedure, 1973 - Indian Evidence Act, 1872.

LIST OF KEYWORDS
BNSS - Cr.P.C. - Magistrate's discretion - complaint - investigation - affidavit - frivolous applications - police
apathy - cognizable offence - judicial review - delay - collection of evidence - physical evidence - recovery of
blood-stained soil - legal or factual infirmity - jurisdictional error - perversity in the order.

CASE ARISING FROM
836 INDIAN LAW REPORTS ALLAHABAD SERIES
Complaint Case No. 1583 of 2024 (Pradeep Kumar v. Mohit Kumar & others), arising out of proceedings
under Section 175(3) BNSS, Police Station Sheoli, District Kanpur Dehat.

APPEARANCE OF PARTIES
Counsel for Appellant(s): Shri Ejaz Ahmad Khan, Mohd. Monis.
Counsel for Respondent(s): Shri Shashi Dhar Pandey and A.G.A.

(Delivered by Hon'ble Rajiv Lochan Shukla, J.)

1. Heard Sri Mohd. Monis, Learned counsel for the applicant, Sri Hari Nath Chaubey, Learned
counsel for the opposite party Nos.2 & 3, Sri Shashi Dhar Pandey, Learned A.G.A. for the State
and perused the material brought on the record.

2. Challenge in this application is to the impugned order dated 18.9.2024 passed by the
Learned Chief Judicial Magistrate, Kanpur Dehat in Criminal Complaint Case No. 1583 of 2024
(Pradeep Kumar Vs. Mohit Kumar and others) arising out of proceeding under section 175(3) of
B.N.S.S. Police Station Sheoli, District Kanpur Dehat.

3. The allegations made in the application under Section 175(3) of the B.N.S.S. are that the
opposite parties on 29.7.2024 at about 08:30 P.M. at night, when the injured of the case Sandeep
had gone to attend the call of nature, was caught hold by the opposite party Nos.2 & 3 due to
previous enmity and then his right leg was tied up with barbed wire and then tied to a motorcycle
through which he was dragged for quite a distance. It has further been alleged in the application
that the entire leg of the injured Sandeep was amputated after which the accused left Sandeep and
run away. The applicant coming to know of the incident is said to have rush to the spot along with
other family members and saw that Sandeep was lying bleeding, who was then taken to Police
Station Sheoli, District- Kanpur Dehat, where no action was taken, thereafter he was taken to
Hallett Hospital then to Rawat Pur Catology Hospital, where the Doctors gave up on the injured,
post which he was taken to the S.G.P.G.I. Lucknow, where at the time of moving of the application
he was still being treated. The applicant supposedly went to the house of the opposite party Nos.2
& 3 complaining as to why they had cut off the leg of his brother on which the opposite party Nos.2
& 3 allegedly abused him and threatened him that the applicant and his brother would both be
killed. The information regarding this incident is said to have been given to the Superintendent of
Police, District- Kanpur Dehat through post, however, when no action was taken, the application
under Section 175(3) B.N.S.S. was moved.

4. The Learned counsel for the applicant states that his application under Section 175(3)
B.N.S.S. has been treated as a complaint and notices have been issued to the opposite party Nos.2
& 3 in accordance with the provisions of Section 223 B.N.S.S. and the date has been fixed for
recording of the statement of the applicant under Section 223 B.N.S.S. Learned counsel for the
applicant states that the Learned Chief Judicial Magistrate, Kanpur Dehat has, in an arbitrary,
manner treated the application as a complaint, while the matter required police investigation as the
same would entail a spot inspection, recovery of the weapon of assault, the motorcycle used in the
commission of offence and arrest of the accused and recovery of the material above-mentioned on
their pointing out. This also requires custodial interrogation. The Learned counsel for the applicant
further states that the Learned Chief Judicial Magistrate Kanpur Dehat has wrongly relied upon the
2 All. Pradeep Kumar Vs. State of U.P. & Ors.
837
decision of this Court in the case of Sukhwasi Vs. State of Uttar Pradesh reported in 2007 (59)
ACC 739, which was with respect to Section 156(3) Cr.P.C. and wrongly treated the application of
the applicant as a complaint. He contends that the same considerations are not applicable to orders
passed under Section 175(3) B.N.S.S.

5. Rebutting the said submissions, Learned Counsel for the opposite party Nos.2 & 3 contends
that the Learned Magistrate has passed a reasoned order, the entire material on record has been duly
considered and the discretion exercised by the Learned Magistrate to treat the application as a
complaint, is in accordance with the law laid down by this Court in the case of Sukhwasi (Supra),
which has also been followed in various recent decisions. He relies upon the judgement of this
Court in the case of Lalaram Vs. State of U.P. and Ors. reported in 2021 (1) ADJ 145, where this
Court after considering the impact of various decisions of this Court as well as the Supreme Court
has summarized the propositions of law governing exercise of registration of First Information
Report under Section 154(3) Cr.P.C. and 156(3) Cr.P.C. including the powers of Learned
Magistrate to direct for registration of a case and investigation or to treat the application as a
complaint.

6. Learned Counsel for the opposite party Nos.2 & 3 further submits that the provisions of
Section 175(3) B.N.S.S. are in pari materia to the provisions of Section 156(3) Cr.P.C. and the
propositions of law governing the exercise of powers under Section 156(3) Cr.P.C, as summarized
by this Court in the judgement of Lala Ram (Supra), are squarely applicable to this case. He
submits that tested on the anvil of the law summarized by this Court in Lala Ram (Supra), the
impugned order does not suffer from any legal or factual error, which may require interference by
this Court in exercise of its extraordinary jurisdiction under Section 528 B.N.S.S.

7. The Learned Additional Government Advocate, Shri Shashi Dhar Pandey has also
supported the impugned order and stated that specific reasons for treating the application as a
complaint have been given and this Court may not substitute its own reasoning to that of the
Learned Magistrate and satisfaction of the Learned Magistrate cannot be substituted in exercise of
powers of judicial review/superintendence, as saved under Section 528 B.N.S.S. and the duty cast
upon the High Court under Section 529 B.N.S.S.

8. I have heard the Learned Counsels for the parties and perused the material brought on the
record.

9. To support the contentions made in the application under Section 175(3) B.N.S.S., the
applicant appears to have filed certain medical reports, which have been annexed as Annexure No.3
to this application and also a letter dated 9.8.2024 addressed to the Superintendent of Police,
District Kanpur Dehat to justify not invoking the powers of the Learned Magistrate for directing
registration of a case and a police investigation. This Court is not considering the merits of the
contentions raised in the application under section 175(3) B.N.S.S. The only legal issue that has
been raised before this Court is whether the Chief Judicial Magistrate Kanpur Dehat in the present
case, rightly passed an order treating the application under Section 175(3) B.N.S.S. as a complaint.
A perusal of the impugned order would indicate that the Learned Magistrate has given a few
838 INDIAN LAW REPORTS ALLAHABAD SERIES
reasons for treating the application as a complaint. The reasons mentioned in the impugned order
are being reproduced here in below:-

"प्रा थनाद पत्र के कथनो के कपरशीलन से क कवदत है क क प्र ा थीर् को घटना के
तथ्यों एवं कपररस्थ क तयों की पूणर् जानकारी है। प्र ा थनाद पत्र में ऐसाकोई कथन कवणत नहीं क कया या है क जससे क क कोई ऐसा साक्ष्य संककलत
क कया जाना हो, जो क क क ववेचना कराए जाने के उपरान् त हीसंककलत क कया जा सकता हो। प्र ा थनाद पत्र में कोई तकनीकी तथ्य क कनहत नहीं
है। प्र ा थीर् अपना समस्त साध्य न् या यालय में प्रस् तु त करसकता है। उल्ले खनीय है क क माननीय इलाहाबाद उच्च न् या यालय द्व ा रा सुखवासी
बनाम उ०प्र ०राज् य [2007 (6) ALJ 424 (DB)] केमामले में अवधाक रत क कया गया है क क धारा 156 (3) दं०प्र ०सं० के प्र ा थनाद
पत्र का क नस्ता रण करते समय न् या यालय को क ववेक कशक्त प्राप् त है और कमजस्रे ट प्रत् ये क प्र ा थनाद पत्र पर प्र थम सूचना क रपोटर् दजर्
कराने के क लए बाध्य नहीं ही है। "

10. The Learned Magistrate has relied upon the decisions of a Division Bench of this Court in
the case of Sukhwasi (Supra). The judgement of Sukhwasi (Supra) was on a reference made to the
larger Bench of this Court for deciding the following question:-

"Whether the Magistrate is bound to pass an order on each and every application under
Section 156 (3) Cr.P.C. containing 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"?

11. This Court in the case of Sukhwasi (Supra) taking into account the various decisions of
the Supreme Court and also an earlier Full Bench of this Court in the case of Ram Babu Gupta
Vs. State of U.P. reported in (2001) ACC 201 held as under:-

"20. The Full bench decision of Ram Babu Gupta's case ' Supra' also lays down that the
Magistrate can treat an application under Section 156 (3) Cr.P.C. as a complaint. This will appear
from the following observations :-

" Coming to the second question noted above, it is to be at once stated that a provision
empowering a Court to Act in a particular manner and a provision creating a right for an
aggrieved person to approach a Court or authority, must be understood distinctively and should
not be mixed up. While sections 154, 155 sub-section (1) and (2) of 156, Cr.P.C. confer right on an
aggrieved person to reach the police, 156 (3) empowers a Magistrate to act in a particular manner
in a given situation. Therefore, it is not possible to hold that where a bare application is moved
before Court only praying for exercise of powers under Section 156 (3) Cr.P.C., it will remain an
application only and would not be in the nature of a complaint. It has been noted above that the
Magistrate has to always apply his mind on the allegations in the complaint where he may use his
powers under Section 156 (3) Cr.P.C. In this connection, it may be immediately added that where
in an application, a complainant states facts which constitute cognizable offence but makes a
defective prayer, such an application will not cease to be a complaint nor can the Magistrate refuse
to treat it as a complaint even though there be no prayer seeking trial of the known or unknown
accused. The Magistrate has to deal with such facts as constitute cognizable offence and for all
2 All. Pradeep Kumar Vs. State of U.P. & Ors.
839
practical purposes even such an application would be a complaint. This court can do no better than
refer to the following observations in Suresh Chand Jain ( Supra):-

" The position is thus clear. Any judicial Magistrate, before taking cognizance of the offence,
can order investigation under Section 156(3) of the Code .......could take further steps contemplated
in Chapter XII of the Code only thereafter.

21. Hon'ble Mr. Justice Amar Saran in Criminal Misc Application No. 7484 of 2004
Mohan Shukla and others Vs. State of U.P., Hon'ble Mr. Justice Alok Singh in Criminal Misc
Application No. 671 of 2007 Ram Sabad Vs. Sessions Jude, Bahraich and others have also held
that the Magistrate is empowered under Section 156(3) Cr.P.C. to treat an application as a
'Complaint'.

22. Applications under Section 156(3) Cr. P.C. are now coming in torrents. Provisions
under Section 156(3) Cr.P.C. should be used sparingly. They should not be used unless there is
something unusual and extra ordinary like miscarriage of justice , which warrants a direction to
the Police to register a case. Such applications should not be allowed because the law provides
them with an alternative remedy of filing a complaint, therefore, recourse should not normally be
permitted for availing the provisions of Section 156(3) Cr.P.C.

23. 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."

12. It is to be taken note of that provisions of Section 175(3) & 175(4) B.N.S.S. are not exactly
the same as those under Section 156(3) Cr.P.C. For the sake of convenience, the provisions of
Section 175(3) & 175(4) B.N.S.S. and 156(3) Cr.P.C. are being reproduced hereinbelow:-

"Section 175(3) of Bharatiya Nagarik Suraksha Sanhita, 2023

(3)Any Magistrate empowered under section 210 may, after considering the application
supported by an affidavit made under sub-section (4) of section 173, and after making such inquiry
as he thinks necessary and submission made in this regard by the police officer, order such an
investigation as above-mentioned.

Section 175(4) of Bharatiya Nagarik Suraksha Sanhita, 2023

Any Magistrate empowered under section 210, may, upon receiving a complaint against
a public servant arising in course of the discharge of his official duties, order investigation, subject
to-

(a) receiving a report containing facts and circumstances of the incident from the officer
superior to him; and
840 INDIAN LAW REPORTS ALLAHABAD SERIES

(b) after consideration of the assertions made by the public servant as to the situation
that led to the incident so alleged

Section 156 (3) of The Code of Criminal Procedure, 1973

156. Police officer's power to investigate cognizable case.

(1)...

(2)...

(3) Any Magistrate empowered under section 190 may order such an investigation as
above mentioned."

13. A comparison of both the provisions referred to above, would indicate that provisions of
Section 175(3) B.N.S.S. have expanded the scope of the exercise of powers by the Learned
Magistrate and has given the Learned Magistrate the discretion of making such inquiry as he thinks
necessary and also take into account the submissions made by the police officer, order for such an
investigation. Section 175(4) of the B.N.S.S. introduces a new provision that did not exist under the
Cr.P.C. It mandates that, where a complaint is made against a public servant in respect of acts
purportedly arising out of or in the course of the discharge of official duties, the Learned Magistrate
may order a police investigation only after obtaining a report from the superior authority of the
public servant detailing the relevant facts and circumstances, and after affording the public servant
an opportunity to present his assertions explaining the circumstances that led to the alleged
incident. These changes that have been brought forth in the B.N.S.S. are, in the opinion of the
Court, to provide the Learned Magistrates with a more robust mechanism in dealing with
applications moved by people complaining apathy by the police in lodging First Information
Report, but at the same time, giving ample discretion to the Magistrate to make such inquiry as they
may deem fit while also giving an opportunity to the police to represent before the Learned
Magistrate. Such power being granted by the statute is intended to curb false and frivolous
applications, which may be made to harass an individual, especially a public servant, who is acting
in discharge of his official duties. The statutory mandate of filing an affidavit in support of an
application under section 175(3) B.N.S.S. also indicates the intent of the Legislature in providing
the Learned Magistrate with the tools to punish a person making a false or frivolous claim before
the Learned Magistrate.

14. The Supreme Court in the case of Priyanka Srivastava and Ors. Vs. State of U.P. and
Ors. reported in 2015 (6) SCC 287, made it mandatory for all applications under section 156(3)
Cr.P.C. to be supported by an affidavit sworn by the applicant, who sought the invocation of the
jurisdiction of the Learned Magistrate. The Supreme Court while taking into account the misuse of
the provision under section 156(3) Cr.P.C., observed that applications were being filed in a routine
manner without taking any responsibility whatsoever, only to harass certain persons. The Supreme
Court in Paragraph Nos.26 and 27 of the above-mentioned judgement has observed as under:-
2 All. Pradeep Kumar Vs. State of U.P. & Ors.
841

"26. 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.

27. 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 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. We have already indicated that there has to be prior applications under Section 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 the application under Section 156(3) be supported by an affidavit 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 are being filed. That apart, the learned Magistrate would also be aware of the delay in
lodging of the FIR."

15. The requirement of filing an affidavit in support of an application under Section 175(3)
B.N.S.S., which has now been mandated by the statute, appears to be in consonance with the
observations of the Supreme Court regarding misuse of the provisions under section 156(3) Cr.P.C.
by unscrupulous litigants. These changes, however, have been incorporated in the B.N.S.S. only to
regulate the procedure in applications, where an aggrieved person approaches a Magistrate seeking
a direction for investigation or registration of a case. The principles, however, governing the
exercise of powers by a Magistrate when it comes to deciding whether to order for an investigation
or treating that application as a complaint, are still the same as those under Section 156(3) Cr.P.C.
This Court as well as the Supreme Court have in various decisions guided the Learned Magistrates
in exercising judicial discretion in such matters and have made all attempts to prevent arbitrary
exercise of powers by the Magistrates.
842 INDIAN LAW REPORTS ALLAHABAD SERIES

16. Quite recently this Court in Lala Ram (Supra) framed four questions, the first three going
directly to the heart of the Magistrate's exercise of jurisdiction under Section 156(3) Cr.P.C. The
questions framed by this Court are being reproduced hereinunder:-

"i) Whether in each and every case, where an application under Section 156(3) Cr.P.C. is
made to the Magistrate disclosing commission of a cognizable offence, the Magistrate is legally
bound to direct registration of the FIR and investigation by police or the Magistrate has also the
power and jurisdiction to pass order for registration of the application as a complaint case.?

ii) On what considerations the Magistrate should take decision for investigation by police
or to proceed with as a complaint case?

iii) What is the nature of an investigation by the police in pursuance of the direction of
the Magistrate issued under Section 156(3) Cr.P.C. and the investigation by the police in
pursuance of the direction of the Magistrate issued under Section 202(1) Cr.P.C. ?

iv) Whether the order passed by the Magistrate in the present case deserves to be
maintained or not?"

17. After considering the entire gamut of the law laid down in various decisions of the
Supreme Court and this Court, this Court in Lala Ram (Supra) summarized the propositions of
law, as follows:-

"(40.06). In either case, i.e. issuing direction for investigation by the police officer under
Section 156(3) Cr.P.C. or taking cognizance and registering it as a complaint case, the Magistrate
has to apply judicial mind. There cannot be mechanical exercise of jurisdiction or exercise in a
routine manner. Mere statement in the order that he has gone through the complaint, documents
and heard the complainant will not be sufficient. What weighed with the Magistrate to order
investigation or to take cognizance should be reflected in the order, although a detailed expression
of his view is neither required nor warranted.

(40.07). The exercise of discretion by the Magistrate is basically guided by interest of
justice, from case to case.

(40.08). However, where some investigation is required which is of a nature that is not
possible for the private complainant and which can only be done by the police officer upon whom
statute has conferred the powers essential for investigation, the option to direct the registration of
the FIR and its investigation by the police officer should be exercised, for example:-

(i) where the full details of the accused are not known to the complainant and the same
can be determined only as a result of investigation, or

(ii) where recovery of abducted person or stolen property is required to be made by
conducting raids or searches of suspected places or persons, or
2 All. Pradeep Kumar Vs. State of U.P. & Ors.
843

(iii) where for the purpose of launching a successful prosecution of the accused evidence
is required to be collected and preserved, and to illustrate this, by few example cases may be
visualised where for production before Court at the trial

(a) sample of blood soaked soil is to be taken and kept sealed for fixing the place of
incident; or

(b) recovery of case property is to be made and kept sealed; or

(c) recovery under Section 27 of the Evidence Act; or

(d) preparation of inquest report; or

(e) witnesses are not known and have to be found out or discovered through the process
of investigation.

(40.09). Where the complainant is in possession of the complete details of all the accused
and the witnesses who have to be examined and neither recovery is needed nor any such material
evidence is required to be collected which can be done only by the police, no "investigation" would
normally be required and the procedure of complaint case should be adopted.

(40.10). Category of cases falling under para 120.6 in Lalita Kumari (Supra) i.e.

(a) Matrimonial disputes/family disputes

(b) Commercial offences

(c) Medical negligence cases,

(d) Corruption cases

(e) Cases where there is abnormal delay in filling criminal complaint etc. may fall under
Section 202 Cr.P.C .

(40.11). The Magistrate should also keep in view that primarily, it is the duty of the
State/police to investigate the cases involving cognizable offence. Generally, the burden of proof to
bring the guilt of the accused is on the State and this burden is a heavy burden to prove the guilt
beyond all reasonable doubts. This burden should not unreasonably be shifted on an
individual/complainant from the State by treating the application under Section 156(3) Cr.P.C. as
a complaint case.

(40.12). The investigation which the police officer or such other person makes in
pursuance of the direction of the Magistrate under Section 202(1) Cr.P.C. is the same kind of
investigation as is required to be conducted by police officer, under Chapter XII Cr.P.C. which
ends with submission of the report as per Section 173(2) Cr.P.C.
844 INDIAN LAW REPORTS ALLAHABAD SERIES

(40.13). The distinction between the investigation by the police officer under Section
156(3) and under Section 202(1) Cr.P.C. is that the former is at the pre-cognizance stage and the
latter is at post cognizance stage, when the Magistrate is seisin of the case. The investigation under
Section 202(1) Cr.P.C. is for the purpose of ascertaining the truth or false hood of the complaint
for helping the Magistrate to decide, whether or not there is sufficient ground, for him to proceed
further against the accused by issuing process, whereas, the inquiry report under Section 173(2)
Cr.P.C. of the investigation made by the police of its own or under the directions of the Magistrate
under Section 156(3) Cr.P.C. is for the purpose of enabling the Magistrate to take cognizance of an
offence under Section 190(1)(a) Cr.P.C.

(40.14). Once cognizance is taken on the application under Section 156(3) Cr.P.C. by the
Magistrate and he embarks upon the procedure embodied in Chapter XV, he would not be
competent to revert to the pre-cognizance stage under Section 156(3) Cr.P.C.

(40.15). If the Magistrate did not order for police investigation under Section 156(3)
Cr.P.C. and took cognizance of the case, that would not be bar to the exercise of the power of the
Magistrate for directing the police investigation under Section 202(1) Cr.P.C.

41. Point nos. 1, 2 and 3 as framed in para 12 of this judgment stands answered as per
para no.40 above."

18. In the opinion of this Court, the consideration by the Learned Magistrate of factors
weighing upon his decision to either treat the application moved before him seeking registration of
a case and an investigation to be treated as a complaint or to direct registration of a First
Information Report, are still the same when it comes to exercise of powers under Section 175(3)
B.N.S.S. Thus, the propositions of law summarized in the case of Lala Ram (Supra), as quoted
above, still apply to proceedings under Section 175(3) B.N.S.S. The considerations of the Learned
Magistrate extracted above on the facts and circumstances of the case, in the opinion of this Court,
are in consonance with Paragraph Nos.40.06 and 40.07 of the case of Lala Ram (Supra) extracted
above. The Learned Magistrate has given his reasons why a police investigation is not required. He
has recorded his satisfaction that nothing has been mentioned in the application, which would
require the collection of such evidence which can only be done by a police investigation. One more
factor that weighs with this Court while considering the impugned order passed by the Chief
Judicial Magistrate, District Kanpur Dehat, is that the alleged attack on the brother of the applicant
is stated to have occurred on 19.07.2024. After the lapse of more than one and a half years from the
date of the incident, no physical evidence would reasonably remain at an open place, and therefore,
recovery of blood-stained soil at this stage would not be possible.

19. These considerations are without prejudice to the claims of the applicant in the application
under Section 175(3) B.N.S.S. The Learned Magistrate has rightly treated the application under
Section 175(3) B.N.S.S, as a complaint by applying the same principles, as were applicable to the
exercise of powers under section 156(3) Cr.P.C.
2 All. Shyam Bahadur Yadav Vs. State of U.P. & Anr.
845

20. As a result of the discussions made above, I find no legal or factual infirmity or
jurisdictional error or any perversity in the order passed by the Learned Magistrate and as a result
of the same, this application fails and is dismissed.

21. There shall be no order as to costs.
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(2026) 2 ILRA 845
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.02.2026

BEFORE

THE HON'BLE AVNISH SAXENA, J.

Application U/S 528 BNSS. No. 32942 of 2025

Shyam Bahadur Yadav ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

ISSUE FOR CONSIDERATION
Whether a long-term sexual relationship between two educated adults, entered into on the basis of a promise
of marriage that was later withdrawn, amount to 'rape under a misconception of fact,' or should it be treated
as a consensual relationship where initiating criminal proceedings would constitute an abuse of process under
Section 528 BNSS?

HEADNOTES
Criminal Law - Bharatiya Nagarik Suraksha Sanhita, 2023 - Sections 180, 183, 528 - Code of
Criminal Procedure, 1973 - Section 482 - Indian Penal Code - Sections 90, 313, 375, 376(2)(n),
420, 504, 506. - Indian Evidence Act - Section 114-A : - Application under Section 528 BNSS - against
charge sheet and summoning order as well as the entire criminal proceedings - FIR - allegation of sexual
intercourse on false promise of marriage and cheating - investigation - charge sheet - summoning order -
trial - Applicant pleaded that the relationship was consensual for six years between educated adults and that
the victim suppressed her status as a divorcee - opposite party no. 2 (victim) argued the consent was
obtained via deceitful misconception of fact under Section 90 IPC - Court finds that (i) victim's claim of two
pregnancies in 2020 contradicts her statement that the first sexual encounter occurred in October 2020 - (ii)
victim's divorce is not mentioned ever in the FIR or in her statement, - (iii) relation between them started from
2019 on the promise of marriage, which continued till 2025, - (iv) both are educated, in a job and had
frequent sexual intercourse and she continued to meet the applicant in jail even after the FIR via RTI evidence
- point of consideration is about the consent or not consent - held that, a long-term physical relationship
between two able-minded adults if maintain, then a subsequently broken of promise of marriage would not
attract any offense - hence, continuation of proceedings will tantamount to miscarriage of justice -
consequently, Application is allowed and entire proceedings are quashed. (Para - 10, 17, 18, 19)
Application Allowed. (E-11)

CASE LAW CITED
Pramod Kumar Navratna vs. State of Chhattisgarh (2026 INSC 124)
Prashant vs. State NCT of Delhi (2024 INSC 879)
Anurag Soni vs. State of Chhattisgarh (2019 LawSuit SC 1053)
Pramod Suryabhan Pawar vs. State of Maharashtra (2019 LawSuit SC 1504)