Point of Law: Magistrate has to always apply his mind on the allegations in the complaint where he may use his powers under Section 156(3) Cr. P.C. In this connection, it may be immediately added that where in an application, a complaint states facts which constitute cognizable offence but makes a defective prayer, such an application will not cease to be a complaint nor can the Magistrate refuse to treat it as a complaint even though there be no prayer seeking trial of the known or unknown accused.

JUDGMENT :

1. Heard learned counsel for the revisionist, learned A.G.A for the State and perused the record.

2. The instant criminal revision is directed against the judgment and order dated 27.08.2021 passed by learned Additional Civil Judge (J.D.), Court No.7/Judicial Magistrate, Agra in Misc. Application No.1317 of 2021, under Section 156 (3) Cr.P.C. "Dhrub Karan Singh vs. Vipin Tiwari and others", Police Station Nai Ki Mandi, District Agra, whereby the learned Additional Civil Judge (J.D.), Court No.7/Judicial Magistrate, Agra has treated the aforesaid Misc. Application No.1317 of 2021 as the complaint case without considering the records, which is illegal and arbitrary.

3. Brief facts are that the revisionist has moved an application under Section 156 (3) Cr.P.C. for registration and investigation of the case which was heard and disposed of by Additional Civil Judge (J.D.), Court No.7/Judicial Magistrate, Agra vide impugned order dated 27.08.2021, whereby the learned Magistrate has directed that the application filed under Section 156 (3) Cr.P.C. to be treated as complaint by placing reliance on the law laid down by Division Bench of this Court in Sukhwasi vs. State of Uttar Pradesh; 2008 Cri LJ 452.

4. Foremost submission of learned counsel for the revisionist is that the impugned order is not sustainable in the eyes of law, insofar as the same is against the law laid down by the Hon'ble Apex Court in the case of Lalita Kumari vs. Government of Uttar Pradesh and another, reported in 2014 (2) SCC 1. He, thus, submitted that the only option available to the learned Magistrate was to allow the application filed under Section 156 (3) Cr.P.C. with a direction to the Station House Officer concerned for registration of F.I.R. regarding the matter. The learned Magistrate was not competent to direct that the application filed under Section 156 (3) Cr.P.C. be treated as complaint. The impugned order is thus, patently illegal which would cause miscarriage of justice, therefore, the same is liable to be quashed.

5. Per contra, learned A.G.A. has supported the impugned order and has pointed out that the grievance of the revisionist has not gone unattended by the court below. The court below after taking into consideration the entire gamut of the facts and circumstances of the case has rightly decided to treat the application filed by the revisionist under Section 156 (3) Cr.P.C. as a complaint. The revisionist shall still have an opportunity to prove his case before the court below. His further submission is that in Lalita Kumari (supra) Hon'ble the Apex Court has not referred, discussed and overruled the law laid down by the Division Bench of this Court in Sukhwasi (supra). Therefore, the impugned order cannot be termed to be illegal and no miscarriage of justice would be caused by the impugned order.

6. The scope and ambit of law laid down by the Hon'ble Supreme Court in Lalita Kumari (supra) can be ascertained from para no.6 of the judgment, which is quoted hereinbelow :

"(6) Therefore, the only question before this Constitution Bench relates to the interpretation of Section 154 of the Code and incidentally to consider Sections 156 and 157 also."

(Emphasis supplied)

7. In case of Lalita Kumari (supra) the controversy revolved around the registration of F.I.R in cognizable cases by the Police Officer. However, it did not dwelve upon scope and ambit of power vested in Magistrate by virtue of provision of Section 156 (3) Cr.P.C. which is, for ready reference, quoted here-in-below :

"156. Police officer' s power to investigate cognizable case.

(1) ........…

(2) ............

(3) Any Magistrate empowered under section 190 may order such an investigation as above- mentioned."

8. In Sukhwasi (supra) the Division Bench of this Court in paragraph nos.6, 7, 8 & 9 has held as under:

"6. It will also be noticed that the law was, and has always been, that if a cognizable offence is made out, the Police are bound to register the First Information Report. In