Hon’ble Barkat Ali Zaidi, J.—The following question, has been referred, for consideration :

“Whether the Magistrate is bound to pass an order on each and every application under Section 156 (3), Cr.P.C. containing allegations of commission of a cognizable offence for registration of the F.I.R. and its investigation by the police even if those allegations, prima-facie, do not appear to be genuine and do not appeal to reason, or he can exercise judicial discretion in the matter and can pass order for treating it as ‘complaint’ or to reject it in suitable cases?"

2. Before, proceeding to discuss the pros and cons of the issue, it would not be out of place to mention that this controversy would have not arisen, if provisions of Section 156 (3), Cr.P.C. had been drafted in a more explicit manner. It could have been mentioned that the Magistrate in his discretion direct registration of the first information report or it could have been mentioned that he should direct registration of a first information report in an appropriate case. Francs Bienniom couplet comes to mind;

“I am the Parliamentary Draftsman.

I composed the country’s Laws.

And of Half the litigation.

I am undoubtedly the cause”.

3. Hon’ble Mr. Justice Vinod Prasad in Criminal Misc. Application No. 6152 of 2006, Smt. Masuman v. State of U.P. and 19 others, connected applications, has held that when an application under Section 156 (3), Cr.P.C. discloses a Commission of a cognizable offence, the Magistrate has no option Magistrate has not to apply his mind and has to act merely as a post office.

4. In the case of Ram Babu Gupta, 2001 (43) ACC 201, it was held by the Full Bench of this Court that the Magistrate is supposed to exercise its discretion while acting on an application under Section 156 (3), Cr.P.C. and he is not supposed to pass an order in a routine manner, and he has to apply his mind. This naturally means that the Magistrate has an option of refusing for registration of the first information report. This will appear from the following observations made in para-17 of (supra) Full Bench judgment;

“In view of the aforesaid discussion on the legal provisions and decisions of the Supreme Court as on date, it is hereby held that on receiving a complaint, the Magistrate has to apply his mind to the allegations in the complaint upon which he may not at once proceed to take cognizance and may order it to go to the police station for being registered and investigated. The Magistrate’s order must indicate application of mind. If the Magistrate takes cognizance, he proceeds to follow the procedure provided in Chapter-XV of Cr.P.C. The first question stands answered thus”.

5. It will further become clear from the following observations made in para-40 of the Judgment :

“While resorting to the first mode inasmuch as directing the police for investigation he should not pass order in a routine manner. He should apply his judicial mind and on a glimpse of the complaint, if he is prima facie of the view that allegations made therein constituted commission of a cognizable offence requiring thorough investigation, he may direct the police to perform their statutory duties as envisaged in law”.

6. The two learned Judges Mr. Justice Vinod Prasad and Mr. Justice R.K. Rastogi were bound by the aforesaid Full Bench decision. Mr. Justice Vinod Prasad referred to this case, while referring to arguments, propounded by the Counsel but did not elaborate, as to what the finding in the case and what the consequence of that finding was? He just skipped over the case, and made no reference, thereto. It was clearly untenable for a Single Judge to ignore the findings of the Full Bench. He did not even, say in his judgment that the Full Bench decision does not imply, that the Magistrate has a discretion in dealing with the application under Section 156 (3), Cr.P.C. He ignored the Full Bench decision, and thereafter gave references, to many Supreme Court decisions. It is a little unusual to obse