The main legal point established is that the Magistrate has the discretion to treat an application under Section 156(3) Cr.P.C as a complaint case and proceed according to the procedure provided under Chapter XV of Cr.P.C.

1. Supplementary Affidavit filed on behalf of applicant today, is taken on record.

2. Heard learned counsel for the applicant and leaned AGA for the State.

3. The instant application under Section 482 Cr.P.C has been filed by the applicant with the prayer to quash the order dated 18.07.2017 passed by the Chief Judicial Magistrate, Hamipur in Criminal Misc. Application No.119/11 of 2017, Krishn Kumari Vs. Pradeep and others moved under section 156(3) Cr.P.C, Police Station Jariya District Hamirpur.

4. The brief facts of the case are that the complainant had gone to take green grass in her field on 12.01.2016. at 5.30 P.M. Pradeep S/o Karan Singh resident of her village having Tamancha (country made pistol) came and threatened her with dire consequences and committed rape on her. She resisted, thereafter, he promised her to marry. Even after that he committed rape with her many times and always promised to marry. He took her to Gujarat in connivance of Sanju S/o Kishore and in the end on 15.03.2017 both left the village. She along with her father went to police station on 16.03.2017 to lodge the report but his report was not lodged. Then this application under Section 156 (3) Cr.P.C was moved on 15.5.2017 in the Court of Chief Judicial Magistrate, Hamirpur with the prayer to lodge First Information Report (hereinafter called 'FIR') and investigate the matter. Learned Chief Judicial Magistrate, Hamirpur after getting report from the Police Station, in which it was reported that no case has been registered in police station, without going into the record and considering the facts and evidence, wrongly treated it as complaint case vide order dated 18.07.2017.

5. It has been argued on behalf of the applicant that when FIR was not lodged by the police with regard to commission of cognizable offence, Magistrate had no power to pass such impugned order except to direct the police to register the case and investigate the matter and no other option was with the Magistrate either to reject the application or to treat the application as a complaint case in respect of the fact that a cognizable offence is made out.

6. Learned AGA disputed the argument of the counsel for the applicant and stated that the Magistrate on receipt of application under Section 156(3) Cr.P.C. has got a discretion either to pass an order to register the case for investigation or to treat the application as a complaint case. On perusal of the facts of the case the Magistrate was of the opinion that in the circumstances of the case it will be proper to treat the application as a complaint case and proceed to conduct inquiry as provided in Chapter XV whereby the applicant was directed to appear for recording the evidence under section 200 Cr.P.C.

7. I have considered the submissions of the counsel for the applicant, learned A.G.A. and perused the entire material on record and law on this point.

8. The main point to be decided in the case is that whether the Magistrate is always duty bound to pass an order for investigation in a case on receipt of application under section 156(3) Cr.P.C., if a cognizable offene is made out or whether the Magistrate also has got the discretion to apply his mind and to pass an order for rejection of the application or to treat the application as a complaint.

9. Here it will not be out of the context to mention that the law was, and has always been, that if a cognizable offence is made out, the Police is bound to register the FIR. In case, the police do not register the FIR, there is provision under Section 154(3) Cr.P.C to send an application to Superintendent of Police, who shall direct the registration of FIR, if a cognizable offence is disclosed. In section 154(3) Cr.P.C. it is mentioned that any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing, and by post, to the Superintendent of Poli