A Magistrate under Section 175(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023, is not mandatorily required to direct registration of a case for cognizable offences. They may exercise judicial discretion to treat an application as a complaint case if the complainant possesses access to the necessary evidence.

JUDGMENT :

BRIJ RAJ SINGH, J.

1. The present application under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 has been filed seeking setting aside the order dated 20.03.2026 passed by the Chief Judicial Magistrate, Gonda in Criminal Misc. Case No.535 of 2026, CNR No.UPGD040035172026, Smt. Roli Vs. Kanaiyalal and others, under Section 173(4) of BNSS, 2023, Police Station Colonelganj, District Gonda.

2. Brief facts of the case are that on 25.12.2025 at 6 P.M. when the applicant, who is a married women aged about 22 years, was bringing sugarcane leafs for feeding the animals from her sugarcane field, opposite parties no.2 to 5, ambushed in the sugarcane field, caught hold the applicant and started molesting her with malicious intent and forcibly dragged her to sugarcane filed with intention to rape her. When the applicant resisted, they beat her and tore her cloths due to which the applicant suffered severe injuries on her body. On alarm raised by the applicant, opposite parties no.2 to 5 ran away from there. On 25.12.2025 itself, the applicant gave an application to the Police Station Kotwali Colonelganj for lodging an FIR against opposite parties no.2 to 5 and also requested for her medical examination, but the police neither lodged the FIR against the opposite parties no.2 to 5 nor medical examination of the applicant was conducted. The applicant along with her husband went to the District Hospital, Gonda to get her medically examined on the very next day i.e. 26.12.2025.

3. It is said that when the police of police of Police Station Kotwali Colonelganj did not lodge the FIR on the application of the applicant, she moved applications to the Inspector General of Police Devipatan Zone, Gonda and to the Hon'ble Chief Minister on 27.12.2025 requesting therein to lodge an FIR against opposite parties no.2 to 5 and for taking appropriate action under the relevant provision of the Bharatiya Nyaya Sanhita, 2023. On 12.01.2026, the applicant also moved applications to the Superintendent of Police, Gonda and to the Deputy Inspector General of Police, Devipatan Range, Gonda through Registered Post for lodging an FIR against the accused.

4. When the police authorities did not lodge the FIR despite the repeated requests of the applicant, she moved an application under Section 175(3) of Bharatiya Nagarik Suraksha Sanhita, 2023 on 20.02.2026 before the Chief Judicial Magistrate, Gonda for lodging an FIR. However, the Magistrate instead of passing an order for lodging the FIR, has treated the application as a complaint case vide impugned order 20.03.2026 without applying his judicious mind by indicating that applicant has personal knowledge of all the facts, which she can prove herself and by way of other witnesses ignoring the fact that the evidence required in this matter to unearth the truth is not in the access of the applicant and is only in access of the police, who can collect the evidence after thorough investigation and fix for statement of the applicant under Section 223 of Bharatiya Nagarik Suraksha Sanhita, 2023 on 20.04.2026.

5. Sri Dwijendra Mishra, counsel for the applicant has submitted that once the cognizable offence is made out for which an application under Section 175(3