Roli vs State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Home Lko. And 4 Others

fHIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
APPLICATION U/S 528 BNSS No. - 1531 of 2026
Roli
.....Applicant(s)
Versus
State of U.P. Thru. Addl. Chief Secy. Deptt. Of
Home Lko. and 4 others
.....Opposite
Party(s)
Counsel for Applicant(s) : Dwijendra Mishra, Rajneesh Mishra,
Vishva Deep Pandey
Counsel for Opposite Party(s) : G.A.
Reserved on 04.05.2026 AFR
Delivered and uploaded on 19.05.2026
HON'BLE BRIJ RAJ SINGH, J.
1. The present application under Section 528 of Bharatiya Nagarik
Suraksha Sanhita, 2023 has been filed seeking setting aside the order
dated 20.03.2026 passed by the Chief Judicial Magistrate, Gonda in
Criminal Misc. Case No.535 of 2026, CNR No.UPGD040035172026,
Smt. Roli Vs. Kanaiyalal and others, under Section 173(4) of BNSS,
2023, Police Station Colonelganj, District Gonda.
2. Brief facts of the case are that on 25.12.2025 at 6 P.M. when the
applicant, who is a married women aged about 22 years, was bringing
sugarcane leafs for feeding the animals from her sugarcane field, opposite
parties no.2 to 5, ambushed in the sugarcane field, caught hold the
applicant and started molesting her with malicious intent and forcibly
dragged her to sugarcane filed with intention to rape her. When the
applicant resisted, they beat her and tore her cloths due to which the
applicant suffered severe injuries on her body. On alarm raised by the
applicant, opposite parties no.2 to 5 ran away from there. On 25.12.2025
itself, the applicant gave an application to the Police Station Kotwali
Colonelganj for lodging an FIR against opposite parties no.2 to 5 and also
requested for her medical examination, but the police neither lodged the
FIR against the opposite parties no.2 to 5 nor medical examination of the
applicant was conducted. The applicant along with her husband went to
the District Hospital, Gonda to get her medically examined on the very
next day i.e. 26.12.2025.

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3. It is said that when the police of police of Police Station Kotwali
Colonelganj did not lodge the FIR on the application of the applicant, she
moved applications to the Inspector General of Police Devipatan Zone,
Gonda and to the Hon'ble Chief Minister on 27.12.2025 requesting
therein to lodge an FIR against opposite parties no.2 to 5 and for taking
appropriate action under the relevant provision of the Bharatiya Nyaya
Sanhita, 2023. On 12.01.2026, the applicant also moved applications to
the Superintendent of Police, Gonda and to the Deputy Inspector General
of Police, Devipatan Range, Gonda through Registered Post for lodging
an FIR against the accused.
4. When the police authorities did not lodge the FIR despite the repeated
requests of the applicant, she moved an application under Section 175(3)
of Bharatiya Nagarik Suraksha Sanhita, 2023 on 20.02.2026 before the
Chief Judicial Magistrate, Gonda for lodging an FIR. However, the
Magistrate instead of passing an order for lodging the FIR, has treated the
application as a complaint case vide impugned order 20.03.2026 without
applying his judicious mind by indicating that applicant has personal
knowledge of all the facts, which she can prove herself and by way of
other witnesses ignoring the fact that the evidence required in this matter
to unearth the truth is not in the access of the applicant and is only in
access of the police, who can collect the evidence after thorough
investigation and fix for statement of the applicant under Section 223 of
Bharatiya Nagarik Suraksha Sanhita, 2023 on 20.04.2026.
5. Sri Dwijendra Mishra, counsel for the applicant has submitted that once
the cognizable offence is made out for which an application under Section
175(3) of Bharatiya Nagarik Suraksha Sanhita, 2023 is filed, then the FIR
must be registered in the light of the law laid down by the Hon’ble
Supreme Court in the case of Lalita Kumari Vs. State of U.P., (2014) 2
SCC 1. He has further submitted that the application is regarding sexual
offence and the same can be investigated by the police after registration of
the FIR, but the Magistrate has treated the application under Section
175(3) of Bharatiya Nagarik Suraksha Sanhita, 2023 as a complaint case
without application of mind.
6. To buttress his argument, counsel for the applicant has placed reliance
upon the following judgements:-
1. , (2014) 2 SCC 1;
Lalita Kumari Vs. State of U.P.

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2. , 2024 SCC OnLine All
Mukesh Kharwar Vs. State of U.P. and others
6035;
3. , (2023) 9 SCC 705;
XYZ Vs. State of Madhya Pradesh and others
4. Anmol Singh V. State of U.P. and others , 2021 SCC OnLine All 7;
and
5. Gulab Chand Upadhyaya Vs. State of U.P. and others , 2002 SCC
OnLine All 1221.
7. On the other hand, Sri Anurag Varma, learned AGA-1 has submitted
that the Magistrate is not bound in each and every case to pass an order to
register the case if the cognizable offence is made out. The Magistrate is
fully competent to use his judicial discretion in the case. He has further
submitted that the Magistrate is empowered under Section 190 Cr.P.C. to
take the cognizance directly or to pass an order directing the police to
investigate and take cognizance or submit a report under Section 173
Cr.P.C. The Magistrate is not always bound to pass an order to register a
case when an application under Section 156(3) Cr.P.C. is moved.
8. Learned AGA-I has further submitted that when a complaint is
presented before a Magistrate, he has two options; one is to pass an order
contemplated by Section 156(3) Cr.P.C. and the second is to direct
examination of the complainant on oath and the witness present, and
proceed further in the manner provided by Section 202 Cr.P.C. An order
under Section 156(3) Cr.P.C. is in the nature of a peremptory reminder or
intimation to the police to exercise its plenary power of investigation
under Section 156(1) Cr.P.C. He has further submitted that the inner and
outer limit of the exercise of this jurisdiction is on a case-to-case basis
dependent on the complaint, nature of allegations and offence set out by
such a complaint. While exercising the discretion, the Magistrate has to
take judicious decision.
9. Learned AGA-I has further submitted that judgement of Lalita Kumari
(supra) has laid down the ratio that police has no option but to register the
offence in shape of FIR under Section 154 Cr.P.C. on receipt of first
information regarding commission of cognizable offence. Further, it has
been submitted that though the Hon’ble Supreme Court while formulating
the question in paragraph-6 made reference to Sections 156 and 157
Cr.P.C., but the entire judgement of Lalita Kumari (supra) and final

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directions issued therein, centre around the statutory obligation of the
police to register the offence under Section 154 Cr.P.C. with only passing
reference of Sections 156 and 157 Cr.P.C. without laying down any law
as regards these provisions (Sections 156 and 157 Cr.P.C.). The
judgement of (supra) does not lay down any dictum in
Lalita Kumari
respect of remedies available to the informant under the Code of Criminal
Procedure to be invoked in case of failure on the part of the police to
perform its statutory duty under Section 154(1)/154(3) Cr.P.C. as a sine
qua non for seeking Writ of Mandamus.
10. To Buttress his argument, learned AGA-I has placed reliance upon the
following judgements:-
1. Waseem Haider Vs. State of U.P. and other s, 2020 SCC OnLine All
1866;
2. Sukhwasi Vs. State of U.P ., 2007 SCC OnLine All 2637;
3. Kailash Vijay Vargiya Vs. Rajlakshmi Chaudhuri and others , (2023)
14 SCC 1;
4. Priti Agarwalla and others Vs. The State of GNCT of Delhi and
, 2024 SCC OnLine SC 973;
others
5. Om Prakash Ambadkar Vs. State of Maharashtra and others , (2026)
2 SCC 622;
6. Criminal Revision No.808 of 2025, X Vs. State of U.P. and others ,
decided on 22.089.2025;
7.
Application U/s 482 No.25994 of 2024, Shaligram Vs. State of U.P.
and other s, decided on 23.08.2024; and
8. s, 2021 SCC OnLine
Kailash Nath Dwivedi Vs. State of U.P. and other
All 478.
11. Heard learned counsel for the parties and perused the record.
12. In the case of Lalita Kumari (supra), Hon’ble Supreme Court has held
that FIR is mandatory under Section 154 Cr.P.C. if information discloses
commission of cognizable offence. Paragraphs 120.1, 120.2, 1203, 120.4
and 120.5 of the aforesaid judgement read as under:-
120.1 The
“ Registration of FIR is mandatory under Section 154 of the
Code, if the information discloses commission of a cognizable offence and
no preliminary inquiry is permissible in such a situation.

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120.2. If the information received does not disclose a cognizable offence but indicates
the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain
whether cognizable offence is disclosed or not.
120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be
registered. In cases where preliminary inquiry ends in closing the complaint, a copy of
the entry of such closure must be supplied to the first informant forthwith and not later
than one week. It must disclose reasons in brief for closing the complaint and not
proceeding further.
120.4. The police officer cannot avoid his duty of registering offence if cognizable
offence is disclosed. Action must be taken against erring officers who do not register
the FIR if information received by him discloses a cognizable offence.
120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the
information received but only to ascertain whether the information reveals any
cognizable offence.”
13. In the case of Mukesh Kharwar (supra), a coordinate Bench of this
Court has held that gravity and seriousness of the evidence required
should be looked into by the Magistrate for the purposes of launching a
successful litigation. Paragraphs 19, 20 and 21 of the aforesaid judgement
read as under:-
“ 19. Perusal of the impugned order shows that no sufficient reason has been
disclosed, on the basis of which, the Magistrate has proceeded to treat the application
under section 156(3) Cr.P.C. as a complaint. Merely because the facts are in the
knowledge of the applicant, direction to lodge FIR cannot be refused. The
gravity/seriousness of the offence; the requirement of the evidence for the purpose of
launching a successful prosecution, and basically the interest of justice depending on
the facts of each case, need be considered in passing the order under Section 156(3)
Cr.P.C. The impugned order does not assign any valid reason nor reflects application
of judicious mind and has been passed in a mechanical manner only on the ground
that the facts of the case were within the knowledge of the applicant, thus, the same is
liable to be set-aside.
20. The present Application U/S 482 is allowed.
21. Accordingly, the impugned order dated 08.05.2024 is set aside with the direction
to the court concerned to pass a fresh order on the application under Section 156(3)
Cr.P.C. filed by the applicant after affording opportunity of hearing to both the
parties, in accordance with law, within a period of one month from the date of
production of certified copy of this order.”
14. In the case of XYZ (supra), Hon’ble Supreme Court has held that it is
not possible for the complainant to retrieve important evidence regarding
her complaint. It may not be possible to arrive at the truth of the matter in
the absence of such evidence. If such evidence cannot be produced by the
complainant and there is a complaint of sexual harassment and there is
evidence of CCTV footage, then FIR should be lodged. Paragraphs 24,
25, 26 and 29 of the aforesaid judgement read as under:-
“ 24. Especially in cases alleging sexual harassment, sexual assault or any similar

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criminal allegation wherein the victim has possibly already been traumatized, the
Courts should not further burden the complainant and should press upon the police to
investigate. Due regard must be had to the fact that it is not possible for the
complainant to retrieve important evidence regarding her complaint. It may not be
possible to arrive at the truth of the matter in the absence of such evidence. The
complainant would then be required to prove her case without being able to bring
relevant evidence (which is potentially of great probative value) on record, which
would be unjust.
25. In this backdrop, we are clearly of the view that the JMFC ought to have exercised
jurisdiction under Section 156(3) of CrPC to direct the police to investigate.
26. At this stage, the Court is not called upon to decide upon the veracity of the
allegations in the complaint, save and except to underscore the importance of an
investigation by the police in a matter where the CCTV footage (or other evidence) is
not under the possession or control of the appellant, but to be inquired into in the
course of an investigation by the police. The discretion which has been conferred
upon the Magistrate by Section 156(3) CrPC, must be exercised in a judicious
manner.
29. Finally, we wish to once again reiterate the importance of courts dealing with
complainants of sexual harassment and sexual assault in a sensitive manner. It is
important for all courts to remain cognizant of the fact that the legal process tends to
be even more onerous for complainants who are potentially dealing with trauma and
societal shame due to the unwarranted stigma attached to victims of sexual
harassment and assault. At this juncture, especially in cases where the police fails to
address the grievance of such complainants, the Courts have an important
responsibility. As the Delhi High Court held in Virender v State (NCT of Delhi),
courts have to remain alive to both treating the victim sensitively while also
discharging the onerous task of ensuring that the complete truth is brought on record
so as to facilitate adjudication and answering the basic question regarding the
complicity of the accused in the commission of the offence. In that case, the High
Court held that:
22. It is to be noted that the embarrassment, and reservations of those concerned with
the proceedings including the prosecutrix, witnesses, counsel may result in a
camouflage of the trauma of the victim's experience. The judge has to be conscious of
these factors and rise above any such reservations to ensure that they do not cloud the
real facts and the actions which are attributable to the accused persons. The trial
courts must be alive to the onerous responsibility which rests on their shoulders and
be sensitive in cases involving sexual abuse.
(emphasis supplied)”
15. In the case of (supra), a coordinate Bench of this Court
Anmol Singh
has passed judgement making an observation that once cognizable
offence is disclosed regarding sexual offence, then the FIR should be
lodged. Paragraphs 14 and 15 of the aforesaid judgement read as under:-
“ 14. It is true that every application under Section 156(3) Cr.P.C. disclosing
commission of a cognizable offence may not be directed for investigation by police
and the Magistrate has jurisdiction to treat the same as a complaint case but in
exercise of such jurisdiction the Magistrate has to keep in view various factors as laid
down in Lalaram (supra), which are only illustrative and not exhaustive. The exercise
of jurisdiction is basically guided by interest of justice, from case to case.

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15. Perusal of the order clearly shows that the Magistrate has not applied judicious
mind to the facts of the case and in particular paragraph no.3 of the application,
which not only made out commission of a cognizable offence but an offence of
molestation and sexual assault on the mother of the applicant. The application clearly
stated that the accused persons are related to influential persons and as such neither
the FIR was being lodged nor the medical of the applicant's mother was carried out.
In such matters the medical examination of the victim is necessary. The medical report
of the victim is of importance. Merely because the facts are in the knowledge of the
applicant, direction to lodge FIR cannot be refused. The gravity/seriousness of the
offence; the requirement of the evidence for the purpose of launching a successful
prosecution, and basically the interest of justice depending on the facts of each case,
need be considered in passing the order under Section 156(3) Cr.P.C. The offence, as
per the contents of the application is not a matrimonial, commercial or family dispute,
etc. The order does not assign any valid reason nor reflects application of judicious
mind to relevant considerations and does not stand the test of the law as laid down in
the cases of ''Ram Deo Food Products' (Supra) and 'Gulab Chand Upadhyay'
(Supra).”
16. In the case of Sukhwasi (supra), a Division Bench of this Court has
held that a complaint disclosing cognizable offence may well justify a M
agistrate in sending the complaint under Section 156(3) Cr.P.C. to the
police for investigation. There is no reason why the time of the Magistrate
should be wasted when primarily the duty to investigate in cases
involving cognizable offences is with the police. On the other hand, there
may be occasions when the Magistrate may exercise his discretion and
'Take' cognizance of a cognizable offence. The Magistrate has authority to
treat an application under Section 156(3) Cr.P.C. as a complaint case. The
Magistrate is always not bound to pass an order to register a case and
investigate when an application under Section 156(3) is moved.
Paragraphs 13, 15, 19 and 23 of the aforesaid judgement read as under:-
“ 13. It is clear from the judgment of the Supreme Court in the case Suresh Chandra
Jain Vs. State of Madhya Pradesh and another, 2001 (42) A.C.C. 459, that a
Magistrate has the authority to treat an application under Section 156 (3) Cr.P.C. as
a complaint. This will become clear from the reference in the said report to the case of
Gopal Das Sindhi and others Vs. State of Assam and another, A.I.R. 1961 S.C. 986, in
which the following observations were made:
"If the Magistrate had not taken cognizance of the offence on the complaint filed
before him, he was not obliged to examine the complainant on oath and the witnesses
present at the time of filing of the complaint. We cannot read the provisions of Section
190 to mean that once a complaint is filed, a Magistrate is bound to take cognizance if
the facts stated in the complaint disclose the commission of any offence. We are
unable to construe the word 'may' in Section 190 to mean 'must'. The reason is
obvious. A complaint disclosing cognizable offences may well justify a Magistrate in
sending the complaint, under Section 156(3) to the police for investigation. There is
no reason why the time of the Magistrate should be wasted when primarily the duty to
investigate in cases involving cognizable offences is with the police. On the other
hand, there may be occasions when the Magistrate may exercise his discretion and

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'Take' cognizance of a cognizable offence."
15. It is hardly possible to infer from the aforesaid observations that the Magistrate
cannot treat an application under Section 156(3) Cr.P.C. as a 'Complaint'. Even a
nebulous of far fetched interpretation will not lead to that inference. The inference
drawn by Hon'ble Vinod Prasad, J. is not logical.
19. In a recent pronouncement, Hon'ble Mr. Justice Shiv Charan Sharma in the case
of Chandrika Singh Vs. State of U.P. and others [2007(58) ACC, 777] has held that a
Magistrate can treat an application under Section 156 (3) Cr.P.C. as a complaint. The
Hon'ble Judge referred to various cases in his judgment and has come to this
conclusion thereafter. It was observed by Shiv Charan, J. as follows:
"In view of this judgment of Full Bench, the Magistrate is fully competent to pass an
order to register a case and investigate on an application under Section 156 (3) Cr.
P.C., all the application under Section 156(3) Cr.P.C. may be treated as complaint
and in the circumstance, the Magistrate shall follow the procedure as provided in
Chapter XV Cr.P.C. This judgment of Full Bench has not been set aside. Hence, in
view of the Apex Court and Full Bench of this Court the Magistrate is fully competent
to treat an application under section 156 Cr.P.C. as a complaint and in the present
case the Magistrate passed an order in the circumstances of the case that it may be
registered as a complaint case and proceed to record the statement under Sections
200 and 202 Cr.P.C. There appears no illegality and impropriety in the order of the
Magistrate.
This controversy must come to an end that an application under section 156(3)
Cr.P.C. can only be treated as an application for passing an order for registration of
the case and investigation cannot be treated as a complaint case. The Magistrate is
not bound in each and every case to pass an order to register a case and investigate if
cognizable offence is made out. The Magistrate is fully competent to use this judicial
direction in the matter. This is wrong notion that if an application has been moved
under section 156(3) Cr.P.C. that the only order can be passed for registration in the
matter. The magistrate has got direction under Section 190 Cr.P.C. to take the
cognizance directly or to pass an order that the police to investigate and then take
cognizance on submissions of a report under Section 173 Cr.P.C. The Magistrate is
also expected to act under some guidelines and it should not be left at the arbitrary
discretion of the Magistrate to pass an order or not to pass an order to register the
case and investigation under Section 156(3) Cr.P.C. In Gulab Chandra Upadhyaya
Vs. State of U.P. Hon'ble Single Judge of this Court laid down the guidelines for the
guidance of Magistrate while deciding the application under Section 156(3) Cr.P.C.
and the guidelines cannot be said against any provision of law or check on the judicial
direction of the Magistrate. Even Hon'ble Apex Court also held that the Magistrate
has got a direction to pass an order to register the case and investigation under
Section 156(3) Cr.P.C. or to treat an application as a complaint case.
In the law laid down by Hon'ble the Apex Court and various judgments of this Court
clearly laid down that the Magistrate is not always bound to pass an order to register
a case and investigation when application under Section 156(3) Cr.P.C. is moved. It
will not be proper to deal with this hypothetical position that if the Magistrate is of
opinion that false and frivolous allegation has been made in application than he may
reject the application or it is for the investigating officer to decide the truthfulness of
the story and if found false then launch prosecution against the applicant. But it is
discretion of the Magistrate to be used judiciously while disposing of the application.
For the reasons mentioned above, I am of the opinion that the Magistrate is not
always bound to pass an order for register of the case and investigation after receipt
of the application under Section 156(3) Cr.P.C. disclosing a cognizable offence. The

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Magistrate may use his discretion judiciously and if he is of the opinion that in the
circumstances of the case, it will be proper to treat the application as a complaint
case then he may proceed according to the procedure provided under Chapter XV of
Cr.P.C. I am also of the opinion that it is not always mandatory in each and every
case for the Magistrate to pass an order to register and investigate on receipt of the
application under Section 156(3) Cr.P.C. In the present case, the Magistrate is
perfectly within the judicial power to treat the application under section 156(3)
Cr.P.C. as a complaint case. There is no illegality or impropriety in the order. The
revision is devoid of merit and is liable to be dismissed".
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.”
17. In the case of Wasim Haider (supra), a Division Bench of this Court
has held that while interpreting the statutory provision under Section 154
Cr.P.C. in the case of Lalita Kumari (supra), nothing further as regards
remedy available to the informant whose information of commission of
cognizable offence does not invoke any response from the police and
judgement of Lalita Kumari (supra) does not lay down any law in respect
of the remedies available to the informant under Cr.P.C. to be invoked in
case of failure on the part of the police to perform its statutory duty under
Section 154(1)/154(3) Cr.P.C. as a sine qua non for seeking Writ of
Mandamus. Paragraphs 20, 21, 22, 23, 26, 27, 28 and 29 of the aforesaid
judgement are extracted herein below:-
20. Perusal of the judgment of Lalita Kumari (supra) and the final directions passed
“
in paragraphs 120.1 to 120.8 clearly reveal the laying down of ratio that the police
has no option but to register the offence in shape of FIR under Section 154 Cr.P.C. on
receipt of first information regarding commission of cognizable offence without
verifying the veracity of the first information.
21. Though the Apex Court while formulating the question in paragraph 6 (supra)
made reference to Sections 156 & 157 but the entire judgment of Lalita Kumari and
final directions issued therein centre around the statutory obligation of the police to
register the offence under Section 154 Cr.P.C, with only passing reference of Section
156 & 157 without laying down any law as regards these provisions (Section 156 and
157 Cr.P.C.).
22. Therefore, it can safely be concluded that the Apex Court while interpreting the
statutory provision under Section 154 Cr.P.C said nothing further as regards remedy
available to the informant whose information of commission of cognizable offence
does not invoke any response from the police. Thus, the judgment of Lalita Kumari
does not lay down any law in respect of remedies available to the informant under
Cr.P.C. to be invoked in case of failure on the part of the police to perform its
statutory duty under Section 154(1)/154(3) Cr.P.C. as a sine qua non for seeking writ
of mandamus.
23. Consequently, the case of Lalita Kumari of the Apex Court does not answer the
principal issue No.1 framed by this Court.

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26. The Code of Criminal Procedure provides various avenues before the
informant/victim to initiate criminal prosecution. The first avenue is of lodging of FIR
under Section 154(1)/154(3) which can be availed by the victim and as well as a
stranger to the offence, provided the first information discloses commission of
cognizable offence. The lodging of FIR under Section 154 Cr.P.C. sets the
investigative machinery into motion without prior permission of the Magistrate as is
otherwise required for non-cognizable offences.
27. The second avenue available to the victim and as well as a stranger to the
cognizable offence, is under Section 156(3) by approaching the concerned Magistrate
by informing commission of cognizable offence. The Magistrate can then conduct an
enquiry himself or direct the concerned police station to register the offence alleged,
thereby triggering the investigation.
28. The third avenue available is under Section 190 Cr.P.C empowering the
competent Magistrate to take cognizance of any offence upon receipt of complaint of
facts containing allegation constituting the offence, or upon a police report of such
facts or upon information received from any person other than a police officer, or
upon his own knowledge of commission of cognizable and as well as non-cognizable
offence, except offences punishable under Chapter XX of IPC, for which procedure
prescribed under Section 198 Cr.P.C. is to be adhered to.
29. The fourth avenue is under Section 200 Cr.P.C where a complaint, oral or in
writing if made before the competent Magistrate leads to hearing by the Magistrate on
the question of taking cognizance of offence or not and if it is found that complaint
discloses commission of any offence punishable in law then the Magistrate issues
summons to the proposed accused on appearance of whom statements of rival parties
are recorded and the Magistrate decides on the question of framing of charge or
discharging the accused. If charges are framed then trial proceeds.”
18. In the case of (supra), Hon’ble Supreme Court
Kailash Vijay Vargiya
has held that when a complaint is presented before the Magistrate, he has
two options; one is to pass an order under Section 156(3) Cr.P.C. and the
second is to direct examination of the complainant and the witness present
and proceed further in the matter provided by Section 202 Cr.P.C. Once
the Magistrate has taken cognizance under Section 190 Cr.P.C., he cannot
ask for an investigation by the police. Paragraphs 16, 18, 39, 41, 42, 59
and 61 of the aforesaid judgment read as under:-
“ 16. The present proceedings arise out of a complaint filed by the original
complainant under Section 156(3) Cr.P.C. The learned CJM, by a
detailed order and giving cogent reasons, dismissed the said
application/complaint under Section 156(3) Cr.P.C and refused to direct
the police to register an FIR. It is not even disputed by the State that prior
to filing of the application/complaint by the complainant under Section
156(3) Cr.P.C., complaints were made to the police authorities, namely,
Officer in Charge of Bahela Police Station, DCP (South Division) and the
SHO. The SHO conducted a preliminary enquiry as mandated by a
Constitution Bench of this Court in the case of Lalita Kumari (supra) and
upon finding that there was a delay of about two years in filing the
complaint, refused to register the FIR. That thereafter, the original
complainant filed a complaint/application before the learned CJM under
Section 156(3) Cr.P.C. and on a careful consideration of the allegations

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in the complaint/application under Section 156(3) Cr.P.C., by a detailed
reasoned order, the learned CJM dismissed the said application under
Section 156(3) Cr.P.C.
18. While quashing and setting aside the order passed by the learned CJM, the High
Court was of the opinion that at the stage of considering the application under Section
156(3) Cr.P.C., it was not open for the learned CJM to verify the truth and veracity of
the allegations. The High Court was of the opinion that in view of the decision of this
Court in the case of Lalita Kumari (supra), what was required to be considered was,
whether the allegations in the complaint/ application disclose prima facie commission
of a cognizable offence or not and if so, the Magistrate has to pass an order directing
the concerned police officer to register an FIR. That thereafter, pursuant to the
impugned judgment and order passed by the High Court and on remand, the learned
CJM has straightway directed to register the application/complaint as an FIR. T
herefore, as such, the subsequent order passed by the learned CJM is a consequential
order passed by the High Court on quashing and setting aside the order passed by the
learned CJM dismissing the application/complaint.
39. We would now refer to the power of the Magistrate to take cognizance, postpone
issue of process and follow the procedure under Section 202 of the Code.
Difference in the power of Police to register and investigate an FIR under Section
154(1) read with 157 of the Code, and the Magistrate’s direction to register an FIR
under Section 156(3) of the Code. Power of the Magistrate to direct registration of an
FIR under Section 156(3) in contrast with post-cognizance stage power under Section
202 of the Code.
41. The power of Magistrate to direct investigation falls under two limbs of the Code:
one is pre-cognizance stage under Section 156(3), and another on cognizance under
Chapter XIV (‘Conditions Requisite for Initiation of Proceedings’; Sections 190-199)
read with Chapter XV (‘Complaints to Magistrates’; Sections 200-210). These two
powers are different and there also lies a procedural distinction between the two.
42. A three Judge Bench decision of this Court in Ramdev Food Products Private
Limited (supra) had examined the distinction between powers of the Magistrate to
direct registration of an FIR under Section 156(3) and power of the Magistrate to
proceed under Section 202 of the Code. It was observed that the power under the
former Section is to be exercised, on receiving a complaint or a Police report or
information from any person other than the Police officer or upon his own knowledge,
before he takes cognizance under Section 190. Once the Magistrate takes cognizance,
the Magistrate has discretion to take recourse to his powers under Section 202, which
provides for postponement of the issue of process and inquire into the case himself or
direct investigation to be made by a Police officer or by such other person as he thinks
fit for the purpose of deciding whether or not there are sufficient grounds for
proceedings. The proviso to Section 202 states that no direction for investigation shall
be made where a complaint has not been made by a Court, unless the complainant
and the witnesses present (if any) are examined on oath under Section 200. When it
appears to the Magistrate that the offence complained of is triable exclusively by the
Court of Sessions, he shall call upon the complainant to produce all his witnesses and
examine them on oath. However, in such cases, the Magistrate cannot issue direction
for investigation of an offence.
59. The decision in Mona Panwar v. High Court of Judicature of Allahabad through
its Registrar and Others, (2011) 3 SCC 496 is rather succinct. This Court held that

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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 under Section 156(1). However, once the Magistrate has taken
cognizance under Section 190 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 under Section 202, 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.
61. We were informed that the Magistrate, on remand, has passed an order under
Section 156(3) directing registration of the FIR. He has misread the order and
directions given by the High Court. In terms of the judgments of this Court, the
Magistrate is required to examine, apply his judicious mind and then exercise
discretion whether or not to issue directions under Section 156(3) or whether he
should take cognizance and follow the procedure under Section 202. He can also
direct a preliminary inquiry by the Police in terms of the law laid down by this Court
in Lalita Kumari.”
19. In the case of Priti Agarwalla and others (supra), Hon’ble Supreme
Court has held that the Magistrate while exercising his power under
Section 156(3) Cr.P.C. has to exercise his discretion on case-to-case basis
dependent on the complaint, nature of allegations and the offence set out
by such complaint. Paragraphs 14.3 and 26 of the aforesaid judgment read
as under:-
14.3 We do not propose to multiply citations on the point and succinctly stated, the
“
Magistrate, under section 156(3) of the CrPC, asks himself a question: whether the
complaint, as presented, makes out a case for directing the registration of an FIR or
calls for inquiry or report from the jurisdictional police station. The inner and outer
limit of the exercise of this jurisdiction is on a case-to-case basis dependent on the
complaint, nature of allegations and offence set out by such a complaint. Therefore, it
is fairly well-settled and axiomatic by the decisions rendered under Section 156(3) of
the CrPC that the Magistrate does not act mechanically and exercises his discretion
judiciously by applying mind to the circumstances complained of and the offence
alleged against the accused for taking one or the other step. The case on hand
principally concerns deciding whether the discretion is invalidly exercised by the
Magistrate while ordering a report from the SHO.
26. From the above consideration, the available conclusion is that firstly, the
Metropolitan Magistrate at the relevant point of time was justified in ordering a
preliminary inquiry on the application dated 09.05.2018 and receiving the Action
Taken Report from the jurisdictional police station. Further, the accusations in the
complaints do not satisfy as having been made in any place within public view.
Therefore, in a case such as the present, directing registration of FIR and further
steps is unsustainable. Points A and B are answered in favour of the Appellants. ”
20. In the case of Om Prakash Ambadkar (supra), Hon’ble Supreme

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Court has held that it is the discretion of the Magistrate concerned
whether to order police investigation under Section 156(3) Cr.P.C. or take
cognizance upon the complaint and issue process or dismiss the complaint
under Section 203 Cr.P.C. Paragraphs 10 and 12 of the aforesaid
judgment read as under:-
“ 10. Ordinarily,Section 156(3) of the Cr.P.C. is invoked by the
complainant when the police authorities decline to register a First
Information Report. In such circumstances, a private complaint may be
made in the court of the Judicial Magistrate and the complainant may
pray that police investigation be ordered under Section 156(3) of the
Cr.P.C. However, it is the discretion of the concerned Magistrate whether
to order police investigation under Section 156(3) of Cr.P.C. or take
cognizance upon the complaint and issue process or dismiss the
complaint under Section 156(3) Cr.P.C. Over a period of time and in view
of many decisions of this Court, if the officer in-charge of the concerned
Police Station for some reasons declines to register the FIR, then the law
has left it open for the complainant to file an appropriate application
before the Magistrate and pray for police investigation. Once an order is
passed for police investigation under Section 156(3) of the Cr.P.C., then
it becomes a police case.
11. However, what is important to observe is that whenever any application is filed by
the complainant before the Court of Judicial Magistrate seeking police investigation
under Section 156(3) of the Cr.P.C., it is the duty of the concerned Magistrate to apply
his mind for the purpose of ascertaining whether the allegations levelled in the
complaint constitute any cognizable offence or not. In other words, the Magistrate
may not undertake the exercise to ascertain whether the complaint is false or
otherwise, however, the Magistrate is obliged before he proceeds to pass an order for
police investigation to closely consider whether the necessary ingredients to constitute
the alleged offence are borne out on plain reading of the complaint.”
21. Further, in the case of (supra), Hon’ble
Om Prakash Ambadkar
Supreme Court has held that the Magistrate is not obliged to pass an order
for registration of the FIR in every case if the evidence is within the
possession of the complainant and the same can be produced by
summoning the witnesses with the assistance of the court otherwise.
Paragraphs 26 and 27 of the aforesaid judgment read as under:-
“ 26.
It is, thus, not necessary that in every case where a complaint has
been filed under Section 200 of the Cr.P.C. the Magistrate should direct
the Police to investigate the crime merely because an application has
also been filed under Section 156(3) of the Cr.P.C. even though the
evidence to be led by the complainant is in his possession or can be
produced by summoning witnesses, with the assistance of the court or
otherwise. The issue of jurisdiction also becomes important at that stage
and cannot be ignored.
27. In fact, the Magistrate ought to direct investigation by the police only where the
assistance of the Investigating Agency is necessary and the Court feels that the cause
of justice is likely to suffer in the absence of investigation by the police. The
Magistrate is not expected to mechanically direct investigation by the police without

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first examining whether in the facts and circumstances of the case, investigation by the
State machinery is actually required or not. If the allegations made in the complaint
are simple, where the Court can straightaway proceed to conduct the trial, the
Magistrate is expected to record evidence and proceed further in the matter, instead
of passing the buck to the Police under Section 156(3) of the Cr.P.C. Of course, if the
allegations made in the complaint require complex and complicated investigation
which cannot be undertaken without active assistance and expertise of the State
machinery, it would only be appropriate for the Magistrate to direct investigation by
the police authorities. The Magistrate is, therefore, not supposed to act merely as a
Post Office and needs to adopt a judicial approach while considering an application
seeking investigation by the Police.”
22. In paragraph-27 of the case of (supra),
Om Prakash Ambadkar
Hon’ble Supreme Court has categorically held that if the allegations made
in the complaint require complex and complicated investigation which
cannot be undertaken without active assistance and expertise of the State
machinery, it would only be appropriate for the Magistrate to direct
investigation by the police authorities.
23. In the case of (supra), a coordinate Bench of this
X Vs. State of U.P.
Court has held that application under Section 156(3) Cr.P.C. can be
entertained by giving a direction to lodge an FIR on the given facts and
circumstances or to treat such application as a complaint case. Paragraph
17 of the aforesaid judgment read as under:-
“ 17. In other words, the Magistrate/Court of competent jurisdiction while dealing
with an application under Section 156(3) Cr.P.C. is empowered to pass an order for
registration of FIR and investigate into the matter or to treat such application as a
'Complaint Case', if Investigation in the matter is not required and he is fully
empowered to reject the application under Section 156(3) Cr.P.C.”
24. In the case of Shaligram (supra), a coordinate Bench of this Court has
held that there is no illegality or irregularity in the order impugned and
after collecting the report from the police station concerned or the report
otherwise the Magistrate is of the view that no investigation from the
police is required and he has rightly directed the present case to be treated
as complaint case. Paragraph 13 of the aforesaid judgment read as under:-
“ 13. In light of the above facts and above proposition of law, this Court is of the view
that there is no illegality or irregularity in the order impugned and after collecting the
report from the police station concerned or the report otherwise the Magistrate is of
the view that no investigation from the Police is required and he has rightly directed
the present case to be treated as complaint case.”
25. In the case of Kailash Nath Dwivedi (supra), a coordinate Bench of
this Court has held that in a case where the complainant is in possession
of the complete details of the case and also the material evidence, such
that investigation by the police may not be required, the Magistrate may

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follow the procedure of a complaint case. Paragraphs 27 and 29 of the
aforesaid case read as under:-
27. It is, therefore, seen that upon an application received under Section
“
156(3) disclosing a cognizable offence, the Magistrate may direct the
police to register the F.I.R. and investigate or alternatively the Magistrate
can take cognizance of the complaint, register it as complaint case and
follow the procedure under Chapter XV of the Code. While exercising this
discretion and taking either of the courses, it would be incumbent upon
the Magistrate to apply judicial mind and the exercise of discretion would
have to be guided by interest of justice, depending upon the facts of the
case. In a situation where the investigation required is of a nature which
can only be made by a police officer upon whom the statute has conferred
the powers of investigation, the Magistrate may be well within his
discretion to direct the registration of an F.I.R. and its investigation by
the police officer. In a case where the complainant is in possession of
the complete details of the case and also the material evidence, such
that 'investigation' by the police may not be required, the Magistrate
may follow the procedure of a complaint case. (Emphasis applied)
29. In the facts of the present case, the courts below have taken notice of the fact that
civil and criminal litigation was pending between the parties and the applicant had
full knowledge of the facts and also the material evidence in respect of the case and
accordingly the order passed by the Magistrate while exercising discretionary powers
under Section 156(3) of the Code and directing the registration of the case as
complaint case and also its affirmation by the revisional court cannot be said to suffer
from any material illegality or procedural irregularity so as to warrant interference.”
26. After discussing various judgements of the Hon’ble Supreme Court as
well as by this Court on the issue in question, this Court comes to the
conclusion that inner and outer limit of exercise of this jurisdiction is on a
case-to-case basis dependent on the complaint, nature of allegations and
offence set out by the complainant. The Magistrate while exercising his
discretion, has to apply his mind judiciously considering the nature of the
complaint and the evidence available with the complainant at the time of
filing the complaint. Once an application under Section 156(3) Cr.P.C. is
entertained by the Magistrate, he has two options; one is to pass an order
under Section 156(3) Cr.P.C. for registration of the FIR and, the second is
to direct examination of the complainant on oath and the witness present
and proceed further in the manner provided by Section 202 Cr.P.C. Once
the Magistrate has taken cognizance under Section 190 Cr.P.C., he cannot
ask for an investigation by the police. It is, however, to be looked into that
in a case where evidence like CCTV footage, unknown accused and any
such evidence, which can only be collected by thorough investigation by
the police, the Magistrate will pass an order for registration of the FIR
based on objective satisfaction. The Magistrate has to look into the

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seriousness of the case and nature of evidence while passing an order for
registration of the FIR under Section 156(3) Cr.P.C. by applying his
judicial mind, as the power under Section 156(3) Cr.P.C. is discretionary
in nature and required to be exercised cautiously based on case-to-case
basis. However, it is borne in mind that the Magistrate is not always
bound to pass an order to register a case and investigation when an
application under Section 156(3) Cr.P.C. is moved.
27. After the aforesaid discussion of factual and legal aspect, the case can
be summarized in the following manner:-
While exercising the power under Section 175(3) of B.N.S.S., 2023
(erstwhile Section 156(3) Cr.P.C.), the Magistrate has the following
options:-
(i) to pass an order for registration of the FIR;
(ii) to treat the application as a complaint case and proceed accordingly
(iii) in case the evidence of such nature which can only be collected by
doing thorough investigation by the police, the Magistrate has to pass an o
rder for registration of the FIR. However, while exercising his power, he
has to apply his mind judiciously.
(iv) in case the complainant is in possession of the complete details of the
case and also the material evidence and the investigation by the police
may not be required, the Magistrate may follow the procedure of a
complaint case. However, he may exercise this jurisdiction is on a case-
to-case basis dependent on the complaint, nature of allegations and
offence set out by the complainant.
28. It is settled law that in a case where the complainant is in possession
of the complete details of the case and also the material evidence and the
investigation by the police may not be required, the Magistrate may
follow the procedure of a complaint case. It is, thus, not necessary that in
every case where a complaint has been filed under Section 200 of the
Cr.P.C., the Magistrate should direct the police to investigate the crime
merely because an application has also been filed under Section 156(3)
Cr.P.C. even though the evidence to be led by the complainant is in his
possession or can be produced by summoning witnesses, with the
assistance of the court or otherwise. In the present case, after perusing the
complaint, this Court finds that there is no such evidence, which requires

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any investigation by the police. Therefore, the Magistrate has rightly
passed the impugned order treating the application as a complaint case,
which needs no interference.
29. Application being devoid of merit, is rejected.
30. Registrar General of this Court is directed to circulate a copy of this
judgement to all the subordinate courts through the District Judges for
perusal.
(Brij Raj Singh,J.)
May 19, 2026
Rao/-
Digitally signed by :-
CHEBROLU SRINIVASA RAO
High Court of Judicature at Allahabad,
Lucknow Bench