Neutral Citation No. - 2025:AHC:35097 Court No. - 79 Case :- MATTERS UNDER ARTICLE 227 No. - 2308 of 2025 Petitioner :- Nand Kishor Thard Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Ayush Mishra,Chandrakant Tripathi,Prabha Shanker Mishra Counsel for Respondent :- G.A. Hon'ble Saurabh Srivastava,J.

1. Heard learned counsel for the parties.

2. Present petition has been preferred with the following prayer:-

"I. to quash/ set aside the order dated 10.10.2022, passed by the Chief Judicial Magistrate, Mau in Case No. 197/2022, and impugned order dated 18.09.2024, passed by Additional District and Sessions Judge, Mau in Criminal Revision no. 05/2023.

II. To issue direction to concerned SHO, to lodge the FIR against the respondent nos. 2 to 4."

3. Learned counsel for the petitioner submitted that petitioner preferred an application under Section 156(3) Cr.P.C before the learned Chief Judicial Magistrate, Mau against the respondent nos. 2 to 4 regarding some property dispute. Learned Chief Judicial Magistrate, Mau, after calling report from the concerned police station passed impugned order dated 10.10.2022 and treated the said application under Section 156(3) Cr.P.C. as complaint case.

4. Being aggrieved with the order dated 10.10.2022, petitioner preferred a criminal revision before the learned District and Sessions Judge, Mau but the same was also rejected vide impugned order dated 18.09.2024.

5. Learned counsel for the petitioner challenged the impugned orders on the ground that both the concerned courts committed a manifest error of law in refusing to register an FIR against the respondent nos. 2 to 4. From perusal of application under Section 156(3) Cr.P.C. prima facie cognizable offence is made out against the respondent nos. 2 to 4 and as such it is prayed to direct the concerned to lodge FIR against the private respondent nos. 2 to 4.

6. Per contra, learned AGA vehemently opposed the prayer sought through the instant petition and submitted that the impugned order is fully justified and legal.

7. After having the rival submissions of learned counsel for parties and perusal of the impugned order, it appears that the concerned court after considering the material available on record, passed the orders impugned. 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 its judicial direction in the matter. This is wrong notion that if an application has been moved under Section 156(3) Cr.P.C then the only order can be passed is 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 v. State of U.P. [2002 (44) SCC 670], a Coordinate Bench 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.

8. The Hon'ble Apex Court in the case of Ramdev Food Products (P) Ltd. v. State of Gujarat, (2015) 6 SCC 439 also observed that under Section 156(3) of Cr.P.C., Magistrate was not bound to direct investigation by police and such direction could be given only on application of mind. It was also observed that each case must be viewed depending upon the facts and circumstances involved. The directions for investigation could not be granted even if all allegations made in the complaint constituted a cognizable offence and in cases where the complainant could prove the fa