Indresh Kumar @ Indresh Prajapati and Another vs State of U.P. Thru. Prin. Secy. Deptt. Home Lko. and Another

Heard Shri Alok Kumar Tripathi, learned counsel for the applicant, Shri Rajdeep Singh, learned A.G.A. for the State-opposite party no.1 and Sri Avinash Pandey and Kumari Swati, learned counsel(s), who have filed power on behalf of opposite party no.2, which is taken on record.

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By means of the present application under Section 528 BNSS, the applicants have challenged the order dated 30.01.2026 passed by Special Judge (POCSO Act), Pratapgarh (in short "Magistrate") Criminal Misc. Case No.10 of 2026 (Applicant Vs. Indresh Prajapati and Others) whereby the application under Section 175(3) BNSS has been allowed and the direction for registration of FIR has been issued to Station House Officer, Sangipur, District - Pratapgarh.

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Brief facts of the case, as stated by Shri Alok Kumar Tripathi, learned counsel for the applicant, are that on 04.01.2026, the applicants were on their duty at Chowki Ghuisarnath at about 09:15 p.m. and the Gram Pratinidhi (Pradhan) Shri Ashutosh Mishra informed through telephone that some persons are doing quarrel in intoxicating state. The applicants came on spot where Shivam Saroj S/o Rajesh, Mamta W/o Vijay Kumar, Anjali D/o Vijay Saroj and 10 to 12 unknown persons were found and they threatened the applicants and also used filthy language and also created hindrance in discharge of the public duty of the applicants.

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He has further stated that on 04.01.2026 at about 9:50 p.m., Shivam Saroj was medically examined and alcoholic smell was found during medical examination. The applicant no.1 lodged First Information Report against Shivam Saroj, Mamta, Anjali and 10-12 unknown persons under Section 221, 132, 352, 351(2), 191(2), 126(2) of B.N.S., 2023 at Police Station Sangipur, District Pratapgarh registered as Case Crime No. 0004 of 2026 dated 05.01.2026 at about 01:00 a.m.. On 05.01.2026, Shivam Saroj was arrested under Section 170, 126, 135 of BNSS, 2023 and there was entry to that effect as G.D. No.035 dated 05.01.2026.

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He has further stated that the opposite party no.2 filed an application under Section 175(3) of BNSS against the applicants on 09.01.2026 making allegations against the applicants that they misbehaved with her and her family members. The Sub-Inspector, Police Station Sangipur, Pratapgarh submitted his report on 13.01.2026 to the Magistrate stating therein that the false and fabricated story has been narrated by opposite party no.2. The Magistrate has passed the order impugned and he has directed to register the FIR while allowing the application under Section 175(3) of BNSS.

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Shri Alok Kumar Tripathi, learned counsel for the applicant has submitted that the applicants have discharged their official duty and they have been falsely implicated by the opposite party no.2 just to settle her personal score. He has further submitted that the applicants were not afforded any opportunity of hearing prior to passing the order for registration of the FIR.

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He has further submitted that in view of Section 175(4) BNSS, the Magistrate was under the bounden duty to consider the case of the applicants by calling report from the senior officials but the same was not done.

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He has also relied on the interim order dated 10.02.2026 passed by this Court at Allahabad in Matters Under Article 227 No. 1268 of 2026 inre: Anuj Kumar Chaudhary And Another Vs. State Of Uttar Pradesh And 3 Others and in paragraph 12, the Court has observed that the preliminary objection has been raised regarding the maintainability of

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the petition filed by the State on behalf of the private respondent and for addressing it on merits, time to file counter affidavit has been sought.

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The paragraph 12 of the order passed in Anuj Kumar Chaudhary (Supra) is quoted below:-

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"The submissions of the petitioners in both the petitions is on merits whereas the preliminary objection has been raised regarding the maintainability of the petition filed by the State on behalf of the private respondent and for addressing it on merits time to file counter affidavit is being sought. A petition before this Court is filed under Article 227 of the Constitution of India, in the supervisory jurisdiction and this Court should not scuttle its jurisdiction while entertaining a matter. The law for maintainability of a petition under Article 227 of the Constitution of India is well settled."

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He has also relied on the judgment of Hon'ble Supreme Court passed in G.C. Manjunath Vs. Seetaram, 2025 INSC 439 .

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On the other hand, Sri Avinash Pandey, learned counsel for the opposite party no.2 has taken specific plea that vide impugned order, the Magistrate has passed the direction to register the FIR and the application under Section 175(3) BNSS has been allowed.

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He has submitted that provisions of Section 175(3) BNSS are pari materia with the provisions of Section 156(3) CrPC. The Full Bench of this Court in the case of Father Thomas Vs. State of U.P. and Anr. , reported in 2011 Cri.L.J. 2278 has considered this aspect and in paragraph 51, the Full Bench has considered that neither a Criminal Revision nor an Application under section 482 Cr. P.C. would lie against the direction of the Magistrate to register and investigate an FIR in exercise of powers under section 156(3) Cr. P.C.. It has been further observed that prior to registration of the FIR, the prospective accused has no right to challenge that order for which the direction was issued to register the FIR.

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Shri Rajdeep Singh, learned A.G.A. for the State-opposite party no.1 has submitted that once the Magistrate has allowed the application under

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Section 175(3) BNSS for registration of FIR, the only remedy available to the applicant is to challenge the FIR after it is registered but prior to that the same is not maintainable.

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After going through the judgment of Full Bench of this Court passed in Father Thomas (Supra), it is ample clear that prior to registration of the FIR, it appears that the applicants have no locus to challenge the order by which the Magistrate has given the direction to register the FIR.

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Paragraph 51 of the judgment passed in Father Thomas (Supra) is quoted below :-

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"Likewise in Rakesh Puri v. State of U.P., (2007 (1) ALJ 169) (supra), Smt. Rekha Verma v. State of U.P. , 2007 (57) ACC 241 : (2007 (1) ALJ (NOC) 123) and Abdul Aziz v. State of U.P. , Paragraph 13 (supra) it has been held by single Judge decisions of this Court that neither a Criminal Revision nor an Application under section 482 Cr. P.C. would lie against the direction of the Magistrate to register and investigate an FIR in exercise of powers under section 156(3) Cr. P.C. In Abdul Aziz it has further been held that only after an FIR can an accused move the High Court in its writ jurisdiction under Article 226 of the Constitution of India for quashing of the FIR, but prior to the registration of the F.I.R., the prospective accused has no right to challenge that order."

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The interim order dated 10.02.2026 passed Anuj Kumar Chaudhary (Supra) is also not applicable in the present case because the petition was filed under Article 227 of the Constitution of India and the State has also challenged the impugned order in that case.

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Also, after going through the judgment of Hon'ble Supreme Court passed in G.C. Manjunath (Supra) , it is clear that the respondent in the case i.e. complainant was prosecuting certain police officers for their illegal activities. Due to that, the complainant alleged that some police officers had engaged accused nos.1 to 5 who were also police officers to take revenge against him. Facts and circumstances of the case is not applicable in the present case.

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