NA528/28406/2025 of KALLU Vs STATE OF U.P. AND ANOTHER

HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 28406 of 2025 Court No. - 81 HON'BLE ACHAL SACHDEV, J. 1. Heard learned counsel for the applicant, learned counsel for opposite party no.2, learned AGA for the State and perused the record.   2. This application u/s 528 BNSS has been preferred by the applicant with prayer to set-aside the order dated 03.06.2025 passed by the learned Special Judge(POCSO Act)/Upper Session Judge, Mahoba, in Criminal Misc. Case No.77 of 2025 (Kallu Vs. Nilesh Gupta), whereby the application of the applicant u/s 173(4) BNSS, Police Station Kabrai, District Mahoba has been directed to proceed as Complaint Case, U/s 223 BNSS. 3. Learned counsel for the applicant submits that applicant has moved an application u/s 173(4) BNSS, stating therein that on 06.04.2025 at 12.00 Noon applicant alongwith his daughter Nisha and wife was standing on the road side of HDFC bank waiting for vehicle to go Mahoba, in the mean time, the opposite party no.2-Nilesh Gupta came there on his Scorpio vehicle and on ask her daughter told the opposite party no.2 that she is going to Mahoba for treatment alongwith her mother and father, who was gone to bathroom. The opposite party no.2 asked her daughter to sit in the front and when she sat in the Scorpio vehicle, then the the opposite party no.2 started the vehicle and told her that her mother and father will follow by his other vehicle. When the vehicle reached Kili Pahadi (Tigela) the opposite party no.2 misbehaved with her daughter and tried to outrage her modesty and when the victim raised voice the opposite party no.2 ran away from the spot. The applicant and his wife reached there by another auto. The applicant tried to lodge the FIR of the alleged incident and Versus Counsel for Applicant(s) : Pradeep Kumar Pandey, Dev Prakash Sharma, Priyanka Devi Counsel for Opposite Party(s) : G.A., Vaibhav Gupta Kallu .....Applicant(s) State of U.P. and Another .....Opposite Party(s) when the FIR was not lodged by the police personnel, he moved an application u/s 173(4) BNSS with prayer to register the case and investigate the matter. 4. Learned counsel for the applicant submits that learned trial court without asking the police report from the police station concerned has passed an order dated 03.06.2025, by which the application U/s 173(4) Cr.P.C. moved by the applicant was directed to be registered as a complaint case u/s 223 BNSS, which is not in accordance with the law laid down by Hon'ble Apex Court in the case of "Lalita Kumari Vs. State of U.P." (2014) 2 SCC 1. 5. Learned counsel for the opposite party no.2 as well as learned AGA for the State have vehemently opposed the aforesaid arguments of learned counsel for the applicant and has raised a preliminary objection on the ground of maintainability of present application and has submitted that the applicant has an alternative remedy to approach the revisional court by means of filing revision against the impugned order dated 03.06.2025, by which the application U/s 173(4) Cr.P.C. moved by the applicant was directed to be registered as complaint case u/s 223 BNSS, hence present application is liable to be rejected. 6. In view of the above arguments advanced by learned counsel for the parties, this Court is of the view that the applicant has an alternative remedy to approach the revisional court by means of filing revision against the impugned order dated 03.06.2025, therefore, the present application is liable to be dismissed. 7. Accordingly, the present application u/s 528 BNSS is hereby dismissed. 8. Certified copy of the documents shall be returned to learned counsel for the applicant as per Rules. April 23, 2026 VKG NA528 No. 28406 of 2025 2 (Achal Sachdev,J.) Digitally signed by :- VIJAY KUMAR GUPTA High Court of Judicature at Allahabad