A.F.R.

Neutral Citation No. - 2025:AHC:123424

Court No. - 73

Case :- APPLICATION under Section 528 B.N.S.S. No. - 25348 of 2025

Applicant :- Kamlesh Meena And 2 Others

Opposite Party :- State Of U.P. And 2 Others

Counsel for Applicant :- Ravi Kant, Vatsala

Counsel for Opposite Party :- Dharmendra Shukla, G.A., Sunil Kumar

Singh

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

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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.

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(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.

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.,

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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.

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Shalu Construction PVT. LTD and others and the Matters under

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.

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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 the police authorities. Paragraph 119 of the

aforesaid judgment is quoted hereinbelow:

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“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. Sub-section (2) of Section 175 the B.N.S.S. is

identical to Section 156(2) of the Cr.P.C. Section 175(3) of

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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 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).

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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 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

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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

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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 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).

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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.

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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

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

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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 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

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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 sub-section 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

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complaint, thus, it would be justified to issue a direction for

registration of an F.I.R. and investigation of the matter.

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

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Section 173(4) read with 175 (3) B.N.S.S. before the summoning/

cognizance stage. There is neither any abuse of process of court

nor any ground made out to pass an order to interfere with the

complaint u/s 173(4) for securing the ends of justice, in exercise

of the inherent jurisdiction of this Court under Section 528

B.N.S.S.

22.Resultantly, instant application at the behest of the

prospective accused, the person who is suspected to have

committed the crime, is dismissed as not maintainable.

Order Date:- 25.7.2025

vkg/vinay/sumit

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