JUDGMENT :

1. The present criminal revision has been filed challenging the order dated 06.09.2019 passed in Criminal Misc. No. 203 of 2019 (Vishwanath vs. Santosh & others) by the Additional Sessions Judge, Court No.1, Kushinagar on an application under Section 156(3) Cr.P.C. filed by the revisionist.

2. The Court below while disposing of the application under Section 156(3) Cr.P.C. has treated the same as complaint and directed it to be registered as complaint case fixing date for recording statement of the complainant under Section 200 Cr.P.C.

3. Challenging this order, learned counsel for the revisionist vehemently submits that from the reading of the application under Section 156(3) Cr.P.C. itself, a cognizable offence was made out and as such it was required for the Court concerned to direct the police to investigate. The appropriate course of action for the Court was to issue direction to the police to lodge a first information report and submit the report under Section 173(2) Cr.P.C.

4. The allegations are of gang rape by the accused persons (opposite party nos. 2 to 5) falling under Section 376 I.P.C., the application seeking for lodging of the first information report could not have been treated as a complaint case.

5. Reliance is placed on the judgment and order dated 07.12.2019 of this Court passed in an application under Section 482 No. 44699 of 2019 (Maneeta vs. State of U.P. & Ors.) wherein following the law laid down in Lalita Kumari vs. Government of U.P. & ors, 2014 (2) SCC 1, it was observed that once a cognizable offence is made out, an FIR should be registered and the summoning order under challenge was quashed as it did not provide any reason for not doing so. The matter had been relegated for fresh decision under Section 156(3) Cr.P.C.

6. Learned counsel for the revisionist vehemently submits that in Lalita Kumari, 2014 (2) SCC 1, the Supreme Court has laid down guidelines holding that an obligation is cast on a police officer to register a first information report under Section 154 of the Code of Criminal Procedure upon receiving any information relating to commission of a cognizable offence. It is contended that the Supreme Court has categorically held that the registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. Only in a case where the information received does not disclose a cognizable offence, the necessity for a preliminary inquiry may arise which may be conducted only to ascertain whether cognizable offence is disclosed or not. In that case also, once the preliminary inquiry discloses the commission of a cognizable offence, the FIR must be registered.

7. Submission is that the application under Section 156(3) Cr.P.C. was filed by the revisionist/applicant for the direction to lodge a first information report as police did not do so. The Court below instead of issuing necessary direction to the police to lodge the first information report and investigate, had illegally treated it as a complaint and proceeded to record the statement of the complainant.

8. Submission is that this act of the Court/Magistrate was beyond the powers conferred on it, as the principle laid down in Lalita Kumari, 2014 (2) SCC 1 would be attracted even in the matter of filing of an application under Section 156(3) Cr.P.C. before the Magistrate. The result would be that once the application under Section 156(3) Cr.P.C. filed before the Magistrate or Court discloses commission of a cognizable offence, it had no option but to issue direction to the police to register a case and investigate the matter for submission of the police report under Section 173(2) Cr.P.C.

9. Learned AGA, on the other hand, submits that the power of a Magistrate under Section 156(3) Cr.P.C. can be equated to the power conferred on it under Section 190 Cr.P.C. as it flows from the said provision. Thus, on the presentation of an