JUDGMENT :

Ajai Kumar Srivastava-I, J.

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

2. The instant criminal revision has been filed by the revisionist for setting aside order dated 25.04.2022 passed by learned Chief Judicial Magistrate, Bahraich, in Misc. Criminal Case No.4050/12/2021, Ram Saran vs. Ayushman and another, Application u/s 156(3) Cr.P.C., Police Station Kaisarganj, District Bahraich.

3. Brief facts are that the applicant moved an application under Section 156 (3) Cr.P.C. for registration and investigation of the case which was heard and learned Magistrate vide order dated 25.04.2022 treated the same as complaint case and fixed the date 26.05.2022 for recording the statement u/s 200 Cr.P.C.

4. Foremost submission of learned counsel for the applicant is that the impugned order is not sustainable in the 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. He has also submitted that learned trial Court while passing the impugned order has lost sight of the fact that the question of recovery of alleged tractor in question was also involved which is otherwise not possible in a case instituted upon private complaint and the same would cause miscarriage of justice to the revisionist/complainant. He has also submitted that it was the duty of learned Magistrate concerned to issue a direction to the police station concerned to get the FIR lodged on the basis of application moved by the revisionist under Section 156(3) Cr.P.C. He, thus, prays that the impugned order is illegal which could not be sustained and deserves to be set aside.

5. Per contra, learned A.G.A. has supported the impugned order and has pointed out that the grievance of the applicant 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 applicant under Section 156 (3) Cr.P.C. as a complaint. The applicant 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 vs. State of Uttar Pradesh; 2008 Cri LJ 452. 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 hereinbelow :

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

(1) ........…

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

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

8. In Sukhwasi (supra) the Division Be