Magistrate has ample discretion at pre-cognizance stage to direct concerned Police Officer to register FIR on basis of complaint instituted
The Magistrate has on institution of written complaint regarding commission of cognizable offence has the following two options:-
(i) At the pre-cognizance stage he may direct to concerned police station to register FIR on the basis of facts narrated in the complaint if commission of congnizable offence disclosed prima facie and Investigating Officer would conduct the investigation. Thus the Magistrate exercises a very limited power under S. 156(3) and so is it's discretion. It does not travel into the arena of merit of the case, if such case was fit to proceed further.
(ii) At the post cognizance- after taking cognizance, he may adopt procedure of complaint cases provided under Ss. 200 and 202, Cr.P.C. If the Magistrate is not satisfied with the conclusions arrived at by the Investigating Officer in report submitted under S.173 then the Magistrate may take cognizance upon original complaint sent to S.H.O. at pre-cognizance stage and proceed further to examine the complaint under S. 200 and his witnesses under S. 202, Cr.P.C.
Magistrate thus has ample discretion at pre-cognizance stage to direct concerned Police Officer to register FIR on basis complaint instituted. Special Judge, at pre-cognizance stage has not exercised such discretion in favour of complainant.
Rejection of complaint at the pre-cognizance stage under S.156(3) does not debar institution of second regular complaint. It would be post-cognizance stage, if the Magistrate takes cognizance on the original complaint or after rejection at pre-cognizance stage, if second complaint is filed by the complainant. In genuine cases, if averments of the complainant are true and trustworthy or these are found so after preliminary inquiry, then the Magistrate under S.156(3) may direct the S.H.O. to register FIR and conduct investigation on the basis of averments of the complaint.
The Magistrate may dismiss the complaint under S.156(3) if by way of instituting complaint, defence version is created to absolve the complainant from the case registered earlier or on the basis of allegations made in the complaint, if dispute is purely of civil nature or the Magistrate considers that the complaint is false and frivolous. The Magistrate has to power to test the truth and veracity of the allegations levelled against the proposed accused persons and if there is no substance in the averments of the complainant then at pre-cognizance stage, the complaint may be dismissed under S.156(3).
