A Magistrate has discretion under Section 156(3) of Cr.P.C. to either take cognizance or direct investigation by police, thus not legally bound to register an FIR.

JUDGMENT :

Rakesh Kainthla, J.

1. The present petition is directed against the order dated 07.07.2018 passed by the learned Additional Chief Judicial Magistrate, Nurpur, (learned Trial Court) vide which the learned Trial Court took the cognisance of an application filed by the petitioner under Section 156 (3) of Cr.P.C. as a private complaint.

2. Briefly stated, the facts giving rise to the present petition are that the petitioner filed an application under Section 156 (3) of Cr.P.C. for issuing a direction to the police to investigate the case after the registration of an FIR against the accused persons for the commission of offences punishable under Sections 323 , 324, 336, 339, 447, 506, 147, 148, and 149 of IPC. Learned Trial Court ordered on 07.07.2018 that the application filed by the petitioner was to be treated as a private complaint and the same be put up for recording the preliminary evidence on 13.08.2018.

3. Being aggrieved from the order passed by the learned Trial Court, the present petition has been filed asserting that the learned Trial Court erred in taking cognizance and treating the application as a private complaint. The order curtailed the remedy of the petitioner for getting the FIR registered. This amounted to a miscarriage of justice. The Magistrate had no option but to direct the police to register the FIR and investigate the case. The petitioner had not made any prayer in the application to take cognizance of the commission of the offence. Learned Magistrate had herself taken the cognizance without considering the prayer of the petitioner. Therefore, it was prayed that the direction be issued to the police to register the FIR under the various provisions of the INDIAN PENAL CODE .

4. I have heard Mr. Naresh Kaul, learned counsel for the petitioner and Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent/State.

5. Mr Naresh Kaul, learned counsel for the petitioner, submitted that the petitioner had filed an application under Section 156 (3) of Cr.P.C. The learned Magistrate was bound to send the application to the police for the registration of the FIR. The learned Magistrate could not have taken cognizance of the same. He relied upon the judgments in Lalita Kumari vs. Govt. of U.P. and ors , 2014 (2) SCC 1 , D. Prasanna vs. State , 2007 Criminal Law Journal 233, Mangalsen @ Mangal versus State of U.P , 2009 (10) RCR (Criminal) 25, Madhu Bala versus Suresh Kumar , 1997 (8) SCC 476, Prabhu Chawla vs. State of Rajasthan , 2016 (4) RCR (Criminal) 270, Vijay and anr. vs. State of Maharashtra , 2017 AIR (SC) 397, M/s Pepsi Foods Ltd. vs. Special Judicial Magistrate , 1998 AIR (SC) 128 and Babu Lal vs. State of Rajasthan , 2009 Criminal Law Journal 4362 in support of his submission.

6. Mr. Lokender Kutlehria, learned Additional Advocate General for the respondent/State, supported the order passed by the learned Trial Court and submitted that no interference is warranted.

7. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

8. The application filed before the learned Magistrate made allegations against the accused named therein for the commission of offences punishable under Sections 323 , 324, 336, 339, 447, 506, 147, 148, and 149 of the INDIAN PENAL CODE . Section 190 of the Code of Criminal Procedure provides that when a complaint is received by a Magistrate, which discloses the commission of an offence, he is entitled to take its cognizance. The term ‘complaint’ has been defined under Section 2(d) of Cr.P.C. as an allegation made orally or in writing to the Magistrate with the view to his taking action under the Code