The main legal point established in the judgment is the need for the Magistrate to apply judicial mind before passing orders under Section 156 (3) of the Code of Criminal Procedure (Cr.PC) and to ensure that the complaint discloses a cognizable offence and the necessity of police investigation. The judgment highlights the discretionary nature of the remedy under Section 156 (3) and the need for the Magistrate to exercise his mind and pass orders only in cases where police investigation is necessary for the collection of evidence not in the possession of the complainant.

This order shall also govern the disposal of Misc. Criminal Case No. 12539/2012 (Vanmali Prasad Dwivedi and two others Vs. Ram Milan Patel).

In this case on a complaint filed by the complainant under Section 200, Cr.PC without recording any evidence on behalf of the complainant and simply on the basis of application under Section 156 (3), Cr.PC the Magistrate directed registration of FIR. The impugned order reads as under :-

XXX XXX XXX

2. The order shows that there had been no application of mind, no evidence has been recorded under Section 200, Cr.PC. Such procedure has been deprecated by Hon'ble the Supreme Court as well as in the judgment delivered by this Court which stands approved by Hon'ble the Supreme Court in the case of Subhkaran Luharuka and another Vs. State and another, Cri.M.C. Nos. 6122-23/2005 and Cri.M.C. Nos. 6133-34/2005. In the aforesaid case also, the complainant filed a complaint under Section 200, Cr.PC along with an application under Section 156 (3), Cr.PC, the Trial Court without recording any evidence under Section 200, Cr.PC directed registration of FIR under Section 156 (3). This order of registration of FIR was challenged by the accused in a case before me while sitting as a Judge in Delhi High Court while filing the petition under Section 482, Cr.PC as also under Section 397, Cr.PC. One petition was filed for quashing of the criminal complaint while the other petition was filed for quashing the registration of FIR.

3. In that case, it was argued that the Metropolitan Magistrate allowed the application under Section 156 (3), Cr.PC without examining the witnesses of the complaint under Section 200, Cr.PC by a cryptic order as has been passed by the Court of Judicial Magistrate First Class in this case even though, no case was made out.

4. This Court after examining the facts of the case and also having considered the judgments relied upon by the parties which included the judgment delivered by the Apex Court framed the following two questions :-

(i) How and when powers under Section 156 (3) of the Code are to be exercised by the Metropolitan Magistrate ?

(ii) Whether the complaint instituted under Section 200, the order dated 1-7-2005 passed under Section 156 (3) of the Code and also the FIR No. 436/2005, dated 6-8-05 of PS Defence Colony, New Delhi registered pursuant to the aforesaid order, are liable to be quashed in exercise of powers vested in this Court under Section 482 of the Code in the peculiar facts of this case ?''

5. Vide the detailed judgment given in that case, this Court quashed the FIR, which was registered on the basis of an order passed by the Magistrate under Section 156 (3), Cr.PC, without recording the evidence under Section 200, Cr.PC. Certain observations made by this Court in that case are relevant and are reproduce for the sake of reference :-

"23. Since the first question is one of public importance. I have heard all concerned including the intervenors at length for the purpose of understanding scope and ambit of the powers of a Magistrate under Section 156 (3) of the Code in the light of the provisions contained in Chapter XII and Chapter XV of the Code. All parties have filed written submissions and have also cited case laws. The issue has also been addressed by both sides even while addressing the final arguments.

24. The petitioners have relied upon following judgments on the first question :-

(i) Maksud Syed Vs. State of Gujarat and others, (2008) 5 SCC 668.

(ii) Safari Vasu Vs. State of U.P. and others, (2008) 2 SCC 409.

(iii) Dharmesh Bhai Vasudev Bhai and others Vs. State of Gujarat, (2009) 6 SCC 576.

(iv) Raghu Raj Singh Rousha Vs. Shivam Sunderam Promoters Ltd., (2009) 2 SCC 363.

(v) Skipper Beverages Pvt. Ltd. Vs. State, 2001 (92) DLT 217.

25. The 2nd respondent/complainant has referred to the following judgments :-

(i) Kanti Bhadra Shah and another Vs. State of West Bengal, (2000) 1 SCC 722.

(ii) Acharya Arun Dev Vs. State and another, 2005 (2) JCC 897.

(iii) Puran Mai