The Magistrate has the discretion to treat an application under Section 156 (3) Cr. P. C. as a complaint if it discloses a cognizable offence.

Heard Sri S. P. Dubey learned Counsel for the petitioner and Sri Sarvajeet Dubey learned Additional Government Advocate for the State and perused the record.

2. At this stage there is no need to issue notices to opposite parties 3 to 12, the prospective accused, hence the same are dispensed with.

3. This petition under Section 482 Cr. P. C. has been filed to set aside the impugned order dated 18-11- 2006 passed by the Judicial Magistrate, Bahraich and order dated 29-11-2006 passed by the Incharge Sessions Judge, Bahraich. By means of first impugned order the learned Magistrate treated the application under Section 156 (3) Cr. P. C. as complaint and fixed a date for recording the statement under Section 200 Cr. P. C. By means of second impugned order passed by the learned Incharge Sessions Judge the revision filed by the complainant (petitioner) was dismissed in limine at admission stage.

4. The facts giving rise to this case are that an application under Section 156 (3) Cr. P. C. was filed by the petitioner on 12- 10-2006 in the Court of Judicial Magistrate, Bahraich against 10 persons (opposite parties Nos. 3 to 12) saying that opposite party No. 3 is a licence holder of fair price shop of Gram Sabha Kursaha while other opposite parties are his companions. On 22-9- 2006 at about 8. 00 a. m. the complainant and his son had gone to take kerosene oil from the house/shop of opposite party No. 3. They were asked to deposit the price of 9 litres kerosene oil at the rate of Rs. 11. 50 paisa per litre and in absence of any loose currency he deposited a note of Rs. 500/- denomination. Though they were asked

to stand in a que, but opposite party No. 3 was distributing kerosene oil to other person only. When they raised objection he started hurling cast indicative abuses, beat and threatened them and also refused to return the currency note of Rs. 500/ -. The other opposite parties being his companions also exhorted, abused and beat both of them by kicks, fists, lathis and dandas. When the complainant and his son went to the police station their report was not lodged and their injuries were also not got examined. Then they went to district hospital and got themselves medically examined. They also sent a registered complaint to the Superintendent of Police on 7-10- 2006. When no action was taken by anybody, the complainant filed an application under Section 156 (3) Cr. P. C. alongwith injury reports of himself and his son. In both the injury reports only complaints of pain at three places each were found. The learned Magistrate, after considering the matter found that all the facts are within the knowledge of the complainant and he did not find anything which is required to be investigated and which the complainant cannot bring before the Court and, therefore, he did not find any ground for getting the matter investigated by the police. Therefore he passed the order for treating it as complaint and fixed a date for recording the statement under Section 200 Cr. P. C.

5. Feeling aggrieved, the complainant filed a revision. The learned Additional Sessions Judge did not find any illegality in the impugned order and therefore dismissed the revision in limine.

6. The question for determination before this Court is as to whether or not an application under Section 156 (3) Cr. P. C. can be treated as complaint.

7. The discussion on the subject entails consideration in the following manner wherein I propose to consider some of the oft quoted case laws on the subject in the following seriatim :

(1) Gopal Das Sindhi and Anr. v. State of Assam, AIR 1961 SC 986. The judgment of this case was rendered by three Honble Judges of the Apex Court. The relevant observations are extracted hereinbelow :

"if the Magistrate had not taken cognizance of the offence on the complaint filed before him, he was not obliged to examine the complainant on oath and the witnesses present at the time of the filing of the complaint. We cannot, read the provis