The main legal point established is that the Magistrate has the discretion to choose between ordering police investigation under Section 156 (3) Cr. P. C. or proceeding under Section 200 and 202 Cr. P. C. under Section 190 Cr. P. C., and once cognizance is taken under Chapter XV, the Magistrate cannot revert back to the pre-cognizance stage and invoke Section 156 (3) Cr. P. C.

J. C. S. RAWAT, J.

( 1 ) THIS petition under Section 482 Cr. P. C. has been filed for quashing the orders dated 16. 7. 2002 passed by Addl. C. J. M. , haldwani (Nainital) in complaint case and judgment dated 2. 5. 2005 passed by the Learned District Judge, Nainital in criminal revision No. 40/2003.

( 2 ) IT is alleged in the present petition that an application under Section 156 (3) Cr. P. C. was filed by the re-spondent no. 2 Mohammad Israil on 31. 5. 2002 against the present applicants with the allegations that the applicants and another person forcibly entered in the p. C. O. of respondent No. 2 and made quarrel and hurl abuses badly with the respondent No. 2 and threatened him. The learned Magistrate registered the same as complaint case vide order dated 31. 5. 2002. After recording the statements under Sections 200 and 202 cr. RC. , the learned Magistrate took cognizance against the present applicants vide its order dated 16. 7. 2002. Feeling aggrieved to this, the applicants preferred a revision before the learned District judge. Vide order dated 2. 5. 2005 the learned District Judge had dismissed the revision and the case was remitted back to the Magistrate for further proceedings against the accused-applicants.

( 3 ) FEELING aggrieved by the orders of the Magistrate and the District Judge, the applicants have come up before this court.

( 4 ) HEARD Sri Sarvesh Agarwal learned counsel for the applicants and Sri nandan Arya learned A. G. A.

( 5 ) THE learned counsel for the applicants has referred the various decisions of the single Judge of Allahabad high Court namely Sumit Kumar Agarwal v. State of U. P. , Surya Nath Yadav v. State of U. P others and Shayam Lal Jaishwal v. State of U. P. , wherein it has been held that the Magistrate is not required to assess the evidence at the time of disposal of application under Section 156 (3} cr. P. C. , if a prima facie case is made out to show that some offence has been committed by the accused, the learned Magistrate should have passed the order directing the police to investigate the matter. The power of the Magistrate under section 156 (3) Cr. P. C. are quite different to the powers under Section 200 Cr. P. C. In these matters a prayer was made that the police may be directed to register and investigate the matter under Section 156 (3) Cr. P. C. , but the Magistrate instead of sending the application for investigation registered the complaint under Section 200 Cr. P. C. and proceeded under Sections 200 and 202 Cr. P. C. as if it was a complaint case. The Allahabad High Court quashed the order of the Magistrate.

( 6 ) THE learned counsel for the applicants vehemently argued that the magistrate has no power to treat the application as a complaint case when it has been filed under Section 156 (3) Cr. P. C. The Magistrate should have forwarded it to the police for investigation or he should have dismissed the same. The learned counsel for the applicants further contended that the Magistrate has no jurisdiction to entertain such application as a complaint and to proceed under Chapter XV of Cr. P. C. The learned A. G. A. refuted the contentions and contended that section 156 Cr. P. C. provides as under :"156. Police officer's power to investigate cognizable case. (1) Any officer in-charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction overthe local area within the limits of such station would have power to inquire into or try under the provisions of chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under Section 190 may order such an investigation as above mentioned. "section 190 Cr. P. C. provides as under :"190. Cognizance of offences by Magistrate (1) Subject to the provisions of this Chapter, any Magistrate

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