The Magistrate has discretion under Section 175(3) of the BNSS to decide whether to register an FIR based on the application, assessing whether a cognizable offense is made out.

1. Heard learned counsel for the appellants and learned A.G.A. for the State and perused the records.

2. The present appeal has been filed under S.14 - A (1) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'SC / ST Act') against the impugned order dated 07.10.2024 passed by Special Judge, SC / ST Act, Gonda in Crl. Misc. Case No.423 of 2024, under S.175 (3) of Bharatiya Nagrik Suraksha Sanhita, 2023 (in short "BNSS") (Maiku Lal and others v. Vijay Bahadur and others), relating to P.S. Paraspur, District Gonda.

3. By the impugned order dated 07.10.2024, the trial Court rejected the application preferred by the appellants under S.175(3) B.N.S.S.

4. From the submissions made by the learned counsel for the appellants as also the averments made in the application under consideration, it is apparent that the order aforesaid has been impeached by the appellants on the ground that from a bare reading of the application under S.175(3) B.N.S.S. it is evident that cognizable offence is made out and as such the order dated 07.10.2024 rejecting the application under S.175(3) B.N.S.S. is liable to be interfered with by this Court.

5. Per contra, learned A.G.A. stated that a bare reading of the application under S.175(3) B.N.S.S. would show that subject matter of the same relates to a land dispute in which the appellants have been assaulted by the private opposite parties and the genuineness of the same can be ascertained by the Court of first instance having competent jurisdiction on the basis of evidence adduced before it and accordingly no interference of this Court in the present appeal is required. Prayer is to dismiss the appeal.

6. Considered the submissions of learned counsel for the parties and perused the records.

7. Law dealing with an application under S.156(3) CrPC (now 175(3) B.N.S.S.) has already been settled in various pronouncements including the following judgments: -

8. Relevant paras of the judgment passed in the case of Sukhwasi v. State of U.P. , reported in 2007 SCC OnLine All. 1088 : (2007 (6) ALJ 424); wherein this Court answered the question referred on account of difference of opinion on the issue of exercise of power under S.156(3) CrPC (now S.175(3) B.N.S.S.), are as under: -
""Whether the Magistrate is bound to pass an order on each and every application under S.156(3) CrPC containing allegations of commission of a cognizable offence for registration of the F.I.R. and its investigation by the police even if those allegations, prima - facie, do not appear to be genuine and do not appeal to reason, or he can exercise judicial discretion in the matter and can pass order for treating it as 'complaint' or to reject it in suitable cases"?
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18. It is hardly possible to infer from the aforesaid observations that the Magistrate cannot treat an application under S.156(3) CrPC as a 'complaint'. Even a nebulous of far fetched interpretation will not lead to that inference. The inference drawn by Hon'ble Vinod Prasad, J. is not logical.
19. The Hon'ble Judge has also referred to the case of State of Haryana v. Bhajan Lal : JT 1990 (4) SC 650 : (1992 Supp (1) SCC 335 : AIR 1992 SC 604) and has extracted the following observations: - (Paras 30, 32)
"At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of S.154(1) of the Code, the concerned police officer cannot embark upon any enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer - in - charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under S.157 of the Code to investigate, subject to the proviso to S.157 (as we have proposed to make a