Court No. - 46

Case :- CRIMINAL REVISION No. - 1640 of 2001

Petitioner :- Father Thomas

Respondent :- State Of U.P. & Another

Petitioner Counsel :- Samit Gopal,K.D. Tewari,M.K. Shukla,P.R.

Maurya,Rajiv Sisodiya,S.S. Chaturvedi

Respondent Counsel :- Govt. Advocate

Connected with

Criminal Revision No. 1731 of 2001

Lal Chand Maurya Vs. State of UP and others

and

Criminal Revision No. 1581 of 2001

Jas Ram Kushwaha Vs. State of UP and others

and

Criminal Revision No. 1727 of 2001

Mohd. Tahir and others Vs. State of UP and others

and

Criminal Revision No. 1656 of 2001

Swaroop and others Vs. State of UP and others

and

Criminal Revision No. 1658 of 2001

Naresh and others Vs. State of UP and others

.............................

( Delivered by Hon'ble Amar Saran, J)

1.We have heard Sri. G.S. Chaturvedi Senior Advocate assisted by Sri

Samit Gopal, Sri D.S. Mishra and Sri Dileep Gupta Advocates for the

private parties and Sri Patanjali Mishra, A.G.A., Sri Neeraj Verma,

A.G.A., and Sri D.R. Chaudhari, Governemnt Advocate for the State

of U.P. Written arguments and case law were filed by the State.

However inspite of time being allowed, no written arguments or case

law were filed by the private counsel, except Sri G.S. Chaturvedi, who

had filed some case law in 2008 in the leading petition, Crl. Revn. No.

1640 of 2000 on behalf of Father Thomas, and has also supplied us

with some additional photocopies of relevant case law.

2.This Full Bench was constituted after an order dated 28.9.01 was

NeutralSCitationSNo5S1S9BWB:AHC:WMI2MI1FB

passed by the Single Judge (Hon. J.C. Gupta, J), who was examining

the power of the Court in a Criminal Revision to question an order of

the Magistrate issuing a direction under section 156(3) of the Code of

Criminal Procedure (hereafter 'Cr.P.C' or 'the Code') to the police to

register an FIR and to investigate the same.

3.The Single Judge was of the view that as the accused has no locus

standi before an order is passed summoning the accused, and also as

the order directing investigation is purely interlocutory in nature, in

view of the statutory bar contained in section 397(2) of the Code, the

said order was not revisable.

4.However, as it had been held in Ajay Malviya vs. State of U.P and

others, reported in 2000(41) ACC 435 that as an order under Section

156(3) Cr.P.C is a judicial order, hence any FIR registered on its basis

could not be challenged by means of a writ petition. Dissenting from

this view the Single Judge without disputing the position that an order

under section 156(3) of the Code was a judicial order, observed that

the said order was an interlocutory order, which could not be

challenged by a prospective accused who had no locus standi at the

stage of investigation, hence a Criminal Revision was not maintainable

for challenging the said order. In this background the Single Judge

raised doubts about the correctness of the decision of the division

bench in Ajay Malviya which based its conclusions on the position that

as an order under section 156(3) was a judicial order, hence it was

ipso facto revisable, and therefore no FIR pursuant to such an order,

could be challenged by means of a criminal writ. The learned single

judge thereupon vacated all the stay orders granted in the connected

Criminal Revisions, which are before us, and formulated the following

three questions for consideration by a larger bench, which are now

being examined by the present Full Bench.

5.A. Whether the order of the Magistrate made in exercise of powers

under Section 156(3) Cr.P.C directing the police to register and

investigate is open to revision at the instance of a person against

whom neither cognizance has been taken nor any process issued?

B. Whether an order made under Section 156(3) Cr.P.C is an

interlocutory order and remedy of revision against such order is

barred under sub-section (2) of Section 397 of the Code of Criminal

Procedure, 1973?

C. Whether the view expressed by a Division Bench of this Court in

the case of Ajay Malviya Vs. State of U.P and others reported in

2000(41) ACC 435 that as an order made under Section 156(3) of the

Code of Criminal Procedure is amenable to revision, no writ petition

for quashing an F.I.R registered on the basis of the order will be

maintainable, is correct?

Opinion of the bench on the three issues

A. Locus standi of a prospective accused against whom neither

cognizance has been taken nor process issued, to challenge an

order under Section 156(3) Cr.P.C in a Criminal Revision.

6.Before examining any of the questions posed in this case, it would be

necessary to reproduce the words of section 156 which falls in Chapter

XII of the Code.

7.156. Police officer's powers to investigate cognizable cases.- (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 over the 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.

8.As pointed out in Suresh Chand Jain v State of M.P. & Ors., AIR 2001

SC 571, (paragraphs 7, 8 and 9) that there is a difference in the

position of a prospective accused against whom an order is made

under section 156(3) of the Code before cognizance is taken by the

Magistrate, and an accused against whom investigation has been

directed under section 202(1) of the Code. Although the nature of both

the investigations is the same, but the former investigation is carried

out by the police, essentially under Chapter XII of the Code which

deals with: "Information to the Police and Their Powers to

Investigate." The police officer-in-charge of the police station has the

same powers for carrying out an investigation under section 156(1),

without orders of the Magistrate as the Magistrate can direct under

section 156 (3) of the Code. Section 154 (1) of the Code prescribes the

steps to be taken on receipt of a report of a cognizable offence by such

a police officer. 154(3) gives powers to the Superintendent to issue

appropriate directions requiring a station officer to conduct

investigation into a cognizable offence. This power is parallel to the

power of the Magistrate to issue a similar direction to the Station

officer under section 156(3) of the Code. The investigation culminates

with the submission of the report by the police under section 173 of

the Code. The post-cognizance investigation directed by the

Magistrate under section 202(1) although it is of a limited nature at the

stage of inquiry and is carried out mainly for helping the Magistrate

decide whether or not there is sufficient ground for him to proceed

further, but it is an investigation which is carried out on directions of

the police after cognizance has been taken by the Magistrate on a

complaint under sections 190(1)(a) and after examination of the

complainant under section 200 of the Code.

9.For showing that a prospective accused has no right of being heard

before process is issued or cognizance is taken, and therefore he

cannot challenge the order directing investigation under section 156(3)

Cr.P.C. in a criminal revision, the learned Single Judge has placed

reliance on the following decisions of the Apex Court which speak of

the absence of any right of an accused to intervene even in an inquiry

under section 202 of the Code, which is conducted after cognizance

has been taken, under section 190 (1)(a) and 200 of the Code:

10.In Smt. Nagawwa v. V.S. Konjalgi, AIR 1976(13) ACC 225 (SC),

V.V. Panchal v. D.D. Ghadigaonkar, AIR (1961) ISCR 1, Chandra

Deo Singh v. Prakash Chandra Bose, AIR (1963) I.S.C.R 202,

Mansukh Lal V. Chauhan v. State of Gujarat, 1997 (35) ACC 501

(SC) and C.B.I. v. V.K. Sahgal & Others, JT 1999 (8) SC 170 it has

been held that the scope of enquiry under section 202 of the Code is

extremely limited, and it is only meant for adjudging whether prima

facie on the basis of the intrinsic reliability of the material placed by

the complainant, a case for issuing process against the accused was

made out. The accused at this stage has a right only to remain

personally present or through his agent and to be informed about what

is going on, but he has no right to participate in the proceedings. At

this stage the defence of the accused is not to be considered.

Sufficiency of the material for conviction is beyond the scope of an

inquiry under section 202 of the Code as the same is a matter for

consideration during trial. The accused is only called upon to answer

the allegations against him after process has been issued against him.

The legislature had deliberately not provided for an accused to

intervene at this stage as that would frustrate the object of the inquiry.

11.In Pratap v. State of U.P., 1991 (28) ACC 422, it has been observed

that merely because process has been issued against a person, it cannot

be said that a decision adversely affecting his rights has been taken, as

he has merely been asked to face trial in a Court of law. Therefore no

principle of natural justice is infringed if a Magistrate issues process

against a person without first affording him an opportunity of hearing.

The Code does not contemplate holding two trials, one before the issue

of process and the other after the process is issued. The legislature has

provided an elaborate procedure for hearing an accused after the trial

begins in a Court of law.

12.The same view has also been taken in S.C. Mishra v. State, 2001 (1)

ACC 342, and Anil Kumar v. State of U.P., 1991 (28) ACC 422. The

aforesaid views in Pratap (supra) and the other abovementioned

authorities have been approved by a Full Bench of this Court in

Ranjeet Singh v. State of U.P., 2000 Cri.L.J 2738.

13.The thrust of the argument was that if after cognizance when the Court

decides to conduct an inquiry under section 200 or 202 Cr.P.C, no

right of hearing, beyond the right of the accused to be present

personally or through counsel is permitted, where would the question

arise of the accused having a right to be heard when an order by the

Magistrate only directing the police to investigate a cognizable offence

in exercise of powers under section 156(3) Cr.P.C was passed at the

pre-cognizance stage.

14.In Union of India v. W.N. Chaddha, 1993 Cri.L.J 859 (SC) it has been

held in paragraph 93: ".......More so, the accused has no right to have

any say as regards the manner and method of investigation. Save under

certain exceptions under the entire scheme of the Code, the accused

has no participation as a matter of right during the course of the

investigation of a case instituted on a police report till the investigation

culminates in filing of a final report under S. 173(2) of the Code or in

a proceeding instituted otherwise than on a police report till the

process is issued under S. 204 of the Code, as the case may be. Even in

cases where cognizance of an offence is taken on a complaint

notwithstanding the said offence is triable by a Magistrate or triable

exclusively by the Court of Session, the accused has no right to have

participation till the process is issued. In case the issue of process is

postponed as contemplated under S. 202 of the Code, the accused may

attend the subsequent inquiry but cannot participate. There are various

judicial pronouncements to this effect but we feel that it is not

necessary to recapitulate those decisions. At the same time, we would

like to point out that there are certain provisions under the Code

empowering the Magistrate to give an opportunity of being heard

under certain specified circumstances."

15.Illustrative circumstances where the accused has been given a right of

hearing during trial are spelt out in paragraphs 93 and 94 in W.N.

Chaddha (supra). Thus under S. 227 of the Code dealing with

discharge of an accused in a trial before a Court of Session under

Chap. XVIII, the accused is to be heard and permitted to make his

submissions before the stage of framing the charges. Under S. 228 of

the Code, the trial Judge has to consider not only the records of the

case and documents submitted with it, but also the submissions of the

accused and the prosecution made under S. 227. Similarly, under S.

239 falling under Chapter XIX dealing with the trial of warrant cases,

the Magistrate may give an opportunity to the prosecution and the

accused of being heard and to discharge the accused for reasons to be

recorded in case the Magistrate considers the charge against the

accused to be groundless. S. 240 of the Code dealing with framing of

charges also requires examination of an accused under S. 239 before

the charge is framed. Under S. 235(2), in a trial before a Court of

Sessions and under S. 248(2) of the trial of warrant cases, the accused

as a matter of right, is to be given an opportunity of being heard. On

the other hand the provisions relating to investigation under Chapter

XII of the Code do not confer any right of prior notice and hearing to

the accused.

16.According to the decision in W.N. Chaddha the prospective accused

can also not get any advantage of the principle of Audi Alteram

Partem at the stage of investigation as no substantive rights of the

accused who has not yet been summoned are involved. Moreover the

accused will have all rights to be heard and to raise his defence pleas

during the course of the trial.

17.In Bhagwan Samardha Sreepada Vallabha Venkata Vishwandaha

Maharaj v. State of A.P. and others., JT 1999 (4) SC 537 it has been

held that even after submission of a final report, the police in exercise

of powers under section 173 (8) is empowered to further investigate

the matter. No obligation is cast at that stage also to hear the accused,

as casting such an obligation would unnecessarily place a burden on

the Courts to search for all the potential accused and to provide them

with an opportunity of being heard before further investigation could

be conducted, defeating its purpose.

18.In C.B.I. and another v. Rajesh Gandhi and another, AIR 1977 SC 93

it has been observed in paragraph 8 that the decision to investigate and

the agency which should investigate the offence does not attract the

principles of natural justice and the accused has no say in the matter as

to who should investigate the offence he is charged with.

19.In Bhagwant Singh v. Commissioner of Police, 1985 (22) ACC 246

(SC) it was held that after consideration of the report under section

173(2) of the Code, where the Magistrate decides not to take

cognizance and to drop the proceedings or reaches a conclusion that

there was no sufficient ground for proceeding against some of the

persons mentioned in the FIR, the Magistrate must give notice to the

informant and provide him with an opportunity to be heard at the time

of consideration of the report. Here again no right of hearing has been

conferred on an accused when the Magistrate decides to hear the

informant on receipt of the report under section 173 (2) of the Code,

when he is of the opinion that no ground exists for proceeding against

the accused.

20.In Karan Singh v. State of U.P., 1997 (34) ACC 163 it has been held

by the referring single judge, Hon'ble J.C. Gupta that neither under the

Code, nor under any principle of natural justice is the Magistrate

required to issue notice or afford opportunity of hearing to the

accused, where the police has submitted a final report, but the

Magistrate on consideration of the material on record decides to take

cognizance under section 190(1)(b) of the Code and directs issue of

process to the accused.

21.In Karan Singh v. State it has been observed as follows:.

"Where an order is made under section 156 (3) Cr. P. C. directing the

police to register FIR and investigate the same, the Code nowhere

provides that the Magistrate shall hear the accused before issuing

such a direction, nor any person can be supposed to be having a right

asking the Court of law for issuing a direction that an FIR should not

be registered against him. Where a person has no right of hearing at

the stage of making an order under section 156(3) or during the stage

of investigation until Courts takes cognizance and issues process, he

cannot be clothed also with a right to challenge the order of the

Magistrate by preferring a revision under the Code. He cannot be

termed as an "aggrieved person" for purpose of section 397 of the

Code."

22.Pertinently it has been observed in Abdul Aziz v. State of U.P., 2009

Cri.L.J 1683 in paragraph 9: "Thus at the stage of Section 156(3) Cr.

P. C. any order made by the Magistrate does not adversely affect the

right of any person, since he has got ample remedy to seek relief at the

appropriate stage by raising his objections. It is incomprehensible

that accused cannot challenge the registration of F.I.R. by the police

directly, but can challenge the order made by the Magistrate for the

registration of the same with the same consequences. The accused

does not have any right to be heard before he is summoned by the

Court under the Code of Criminal Procedure and that he has got no

right to raise any objection till the stage of summoning and resultantly

he cannot be conferred with a right to challenge the order passed

prior to his summoning. Further, if the accused does not have a right

to install the investigation, but for the limited grounds available to

him under the law, it surpasses all suppositions to comprehend that he

possesses a right to resist registration of F.I.R."

23.In the case of Chandan v. State of U. P. and another 2007(57) ACC

508 : (2007 (1) ALJ (NOC) 7 (All.) it was also held that the accused

does not have any right to challenge an order passed under Section

156(3) Cr. P. C.

24.Similarly in Surya Kant Dubey & Ors. v. State of U.P. & Anr., 2008

Cri.L.J. 2556, Rakesh Mohan Sharm v. State of U.P. & Ors., 2007(57

ACC 488, Rakesh Puri v. State (2007 (1) ALJ 169) it has been held in

Single Judge decisions that at the stage of 156(3) of the Code, the

prospective accused can not step in before the Magistrate and interfere

with the investigation by challenging a direction for registration of the

FIR, when he cannot even participate in the investigation, which is

conducted ex parte at this stage.

25.The learned Single Judge Hon'ble J.C. Gupta J also referred to Arun

Vyas & others v. Anita Vyas, 1999 (39) SC 170 wherein it was

observed that even if a statutory bar for taking cognizance is raised on

the ground that the complaint was barred by limitation under section

468 of the Code, the appropriate stage for the accused to raise this

objection was at the stage of framing of charges.

26.State of Punjab v. Raj Singh & Others, JT 1999 SC 145 was cited for

the proposition that even where a jurisdictional bar to proceed with a

case, in the absence of certain pre-conditions as required under section

195 Cr.P.C is claimed, no embargo can be placed on the power of the

police to investigate. The bar, if at all, could only be considered at the

stage when the Court decides to take cognizance of the case.

27.Sri D.S. Mishra on the other hand has placed reliance on the decision

of the Apex Court in Raghu Raj Singh Rousha v. Shiva Sundaram

Promoters Private limited and another, (2009) 1 SCC (Cri) 801 for

making a submission that at the stage of passage of an order under

section 156 (3) Cr.P.C, the accused has a right to be heard.

28.It may be noted that the backdrop of Raghu Raj Singh Rousha's case

was that the complainant company had filed a complaint petition

accompanied by an application under section 156 (3) of the Code

before the Metropolitan Magistrate alleging commission of offences

under sections 323, 382, 420, 465, 471, 120-B, 506 and 34 IPC against

the accused. The Magistrate refused to direct investigation in terms of

section 156(3) Cr.P.C, but directed the complainant to lead pre-

summoning evidence. The High Court however in a criminal revision

against the order of the Magistrate, where only the State was

impleaded, without giving any opportunity to the accused to be heard

set aside the order of the Magistrate and directed the Magistrate to

examine the matter afresh after calling for a police report. The High

Court's order was set aside by the Apex Court on two counts. One that

there was an infringement of section 401 (2) of the Code as the right of

hearing to an accused, or any other person who may be aggrieved

mandated by the aforesaid provision, was denied to the aggrieved

party as a result of the High Court's order. Two, according to the Apex

Court the initial order of the Magistrate, who declined to entertain the

application under section 156 (3) of the Code, but directed that the

procedure of a complaint case be followed, and that the witnesses be

examined under section 200 and 202 Cr.P.C. indicated that cognizance

had been taken, hence a right of hearing had accrued to the accused.

That would not have been the case, if only a pre-cognizance order of

the Magistrate refusing to issue a direction under section 156(3)

Cr.P.C. had been challenged in the High Court by the informant,

where right of hearing had been denied to the accused in a Criminal

Revision. These are the two basic distinctions from a direct order by a

Magistrate to the police to investigate an offence. Here the direction

under section 156(3) Cr.P.C has not been issued consequent to any

direction by the High Court in a criminal revision at the instance of the

informant where only the State is made a party, and the aggrieved

accused is denied the opportunity of hearing contemplated under

section 401(2) Cr.P.C. Also it is a pre-cognizance order only

containing a direction of the Magistrate for investigation by the police,

where no valuable right has accrued to the prospective accused, which

is distinct from the post cognizance order in Rousha's cases, where the

Magistrate had decided to follow the procedure of a complaint case

under section 200 and 202 Cr.P.C. We therefore find that Rousha's

case is no authority for the proposition that any right of hearing

accrues to a prospective accused or that any criminal revision is

maintainable against an order of the Magistrate simply directing the

police officer in-charge of a police station to investigate a case in

exercise of powers under section 156(3) of the Code.

29.From a consideration of the aforesaid authorities, it is apparent that

even when a complaint is filed under section 190(1) (a) and the Court

decides to take cognizance and to adopt the procedure provided for

inquiry under section 200 and 202 Cr.P.C, the accused is only

permitted to remain present during the proceedings, but not to

intervene or to raise his defence, until the order issuing summons is

passed. The right of hearing of a prospective accused at the pre-

cognizance stage, when only a direction for investigation by the police

is issued by the Magistrate under section 156(3) Cr.P.C., can only be

placed at a lower pedestal. It is only during the course of trial that the

accused has been conferred rights at different stages to raise his

defence. As the authorities show, that in the absence of any statutory

right of hearing to the prospective accused at the pre-cognizance stage,

when the direction to investigate has only been issued by the

Magistrate under section 156(3), the accused cannot be conferred with

any right of hearing even under any principle of audi alteram partem.

30.We have also seen that during the stage of investigation the accused

has no right of intervention as to the mode and manner of investigation

and who should investigate.

31.Even after submission of a final report, either when the police decides

to order further investigation under section 173(8) Cr.P.C, or before

accepting or rejecting the report, only the informant is required to be

heard. The accused is not entitled to be heard even at this stage. In this

view it would be unrealistic to confer a right of hearing when only an

innocuous direction for investigation is passed by the Magistrate in a

case disclosing a cognizable offence., especially when the allied order

regarding the decision of a police officer to investigate in exercise of

powers under section 156(1) is not vulnerable to challenge in the

criminal revision. Also when objections to maintainability of a case

are raised on the ground of limitation under section 468 or under

section 195 Cr.P.C, the appropriate stage for raising these objections is

at the time of cognizance or at the time of framing of charges, and not

when a Magistrate issues a direction for investigation under section

156(3) Cr.P.C.

32.In the light of the aforesaid discussion, it is abundantly clear that the

prospective accused has no locus standi to challenge a direction for

investigation of a cognizable case under Section 156(3) Cr.P.C before

cognizance or issuance of process against the accused. The first

question is answered accordingly.

B. Whether an order under Section 156(3) is an interlocutory

order and revision against the said order is barred, under Section

397(2) Cr.P.C.

33.It was observed by the learned Single Judge that as no substantive

rights and liabilities of the accused are involved at the stage when an

order is passed by the Magistrate directing the police merely to

investigate into a cognizable offence in exercise of powers under

section 156(3) Cr.P.C. and only the informant and the police are in the

picture, the said proceedings are purely interocutory in nature, and are

not revisable. It is only after investigation when a report under section

173 (2) of the Code is submitted by the police, that the Magistrate

makes up his mind whether to take cognizance or to drop the

proceedings.

34.S. 397 (2) of the Code reads as follows.

"The powers of revision conferred by sub-section (1) shall not be

exercised in relation to any interlocutory order passed in any appeal,

inquiry, trial or other proceeding."

35.Only if cognizance is taken and process issued that the accused gets a

right of hearing. Before that stage according to the learned Single

Judge, any order, including an order under section 156(3) Cr.P.C, will

be interlocutory in nature.

36.The Statement of Objects and Reasons of s. 397(2) as contained

Clause (d) of Paragraph 5 of the accompanying the 1973 Code. runs

thus:

"the powers of revision against interlocutory orders are being taken

away, as it has been found to be one of the main contributing factors

in the delay of disposal of criminal cases."

37.In support of his contention that a direction by the Magistrate to the

police under section 156 (3) Cr.P.C. to register and investigate a

criminal offence may not amount to an interlocutory order, but it could

at best be described as an intermediate order, Sri D.S. Mishra

Advocate has placed reliance on the Apex Court decision in Madhu

Limaye v State of Maharashtra 1978 (15) ACC 184.

38.Madhu Limaye (supra) no doubt lays down that orders, such as the

order in that case issuing process against the accused could not be

described as a final order, but it was also not an interlocutory order,

which could have attracted the bar to the maintainability of the

criminal revision in view of section 397 (2) of the Code, because if the

plea of the accused was rejected on a point which when accepted could

have concluded the particular proceedings. Rather according to the

said decision it should be described as a type of intermediate order

falling in the middle course. In Madhu Limaye an objection had been

raised by the appellant that the cognizance taken by the Sessions Court

without commitment of the case to it in exercise of powers under

section 199(2) Cr.P.C, on a complaint under section 500 IPC by the

Public Prosecutor based on the sanction by the State government under

section 199(4) Cr.P.C was incompetent, as no complaint had been

made by the aggrieved person Sri A.R. Antulay, the Chief Minister,

and the alleged defamatory statements related to acts done in his

personal capacity, and not in the discharge of his public duties. If this

contention was accepted, it would have resulted in the order of

cognizance passed by the Sessions Judge without the case being

committed to him, being set aside. Hence this objection would go to

the root of the matter, and could not be ignored only by describing the

order as interlocutory in nature.

39.In Amar Nath v. State of Maharashtra, AIR 1977 SC 2185

interlocutory orders have been described thus in paragraph 6: "It seems

to us that the term "interlocutory order" in S. 397 (2) of the 1973 Code

has been used in a restricted sense and not in any broad or artistic

sense. It merely denotes orders of a purely interim or temporary nature

which do not decide or touch the important rights or the liabilities of

the parties. Any order which substantially affects the rights of the

accused, or decides certain rights of the parties cannot be said to be an

interlocutory order so as to bar a revision to the High Court against

that order, because that would be against the very object which formed

the basis for insertion of this particular provision in S. 397 of the 1973

Code. Thus, for instance, orders summoning witnesses. adjourning

cases, passing orders for bail, calling for reports and such other steps

in aid of the pending proceeding, may no doubt amount to

interlocutory orders against which no revision would lie under Section

397 (2) of the 1973 Code. But orders which are matters of moment and

which affect or adjudicate the rights of the accused or a particular

aspect of the trial cannot be said to be interlocutory order so as to be

outside the purview of the revisional jurisdiction of the High Court.

40.In Amar Nath the order summoning the appellants in a mechanical

manner after the police had submitted a final report against them

leading to their release by the Judicial Magistrate, and the revision

against that order before the Additional Sessions Judge preferred by

the complainant had also failed. Even the subsequent complaint by the

complainant had been dismissed on merits. Against the latter dismissal

of the complaint when the complainant preferred a revision, the

Sessions Judge set aside the order of the Judicial Magistrate and

ordered further inquiry, whereupon the Magistrate straightaway

summoned the appellants for trial. This order which appeared to

infringe substantial rights acquired by the appellants was considered

an order of moment and not a mere interlocutory order, which would

invite the bar to entertaining the revision under S. 397(2) of the Code.

41.An order under section 156(3) Cr.P.C. passed by the Magistrate

directing the police officer to investigate a cognizable case on the

other hand is no such order of moment, which impinges on any

valuable rights of the party. Were any objection to the issuance of such

a direction to be accepted (though it is difficult to visualize any

objection which could result in the quashing of a simple direction for

investigation), the proceedings would still not come to an end, as it

would be open to the complainant informant to move an application

under section 154(3) before the Superintendent of Police (S.P.) or a

superior officer under section 36 of the Code. He could also file a

complaint under section 190 read with section 200 of the Code. This is

the basic difference from the situations mentioned in Madhu Limaye

and in Amar Nath's cases, where acceptance of the objections could

result in the said accused being discharged or the summons set aside,

and the proceedings terminated. Also the direction for investigation by

the Magistrate is but an incidental step in aid of investigation and trial.

It is thus similar to orders summoning witnesses, adjourning cases,

orders granting bail, calling for reports and such other steps in aid of

pending proceedings which have been described as purely

interlocutory in nature in Amar Nath (supra).

42.In this connection it has been aptly noted in Devarapalli

Lakshminarayana Reddy v Narayan Reddy, AIR 1976 SC 1672, that

"an order made under sub-section (3) of Section 156, is in the nature of

a peremptory reminder or intimation to the police to exercise their

plenary powers of investigation under Section 156 (1)."

43.The power conferred under section 156(3) Cr.P.C. is of the same

nature as the power under section 156(1), which is the power

conferred on a police officer in-charge of a police station to investigate

any cognizable case to investigate a case, without orders of the

Magistrate, which the Magistrate of the local area would have power

to inquire into or try. The police officer records an FIR in accordance

with the procedure mentioned in section 154(1) of the Code. In the

event of the failure of the police officer to record the information, the

aggrieved informant has been given a right to approach the

Superintendent of Police under section 154(3) for a direction for

investigation. Such powers may also be exercised by any officer

superior in rank to an officer in-charge of a police station in view of s.

36 of the Code. The powers of a Magistrate for giving directions under

section 156(3) is thus allied to the powers of police officers under

sections 154(1), 154(3) and 36 of the Code. It would thus be highly

illogical to suggest that the Courts have no jurisdiction to interfere in a

criminal revision or other judicial proceedings with the decision of the

police officer in-charge of the police station to lodge an FIR under

section 154(1) of the Code or by a superior officer under section

154(3), or the actual investigation conducted by the police under the

aforesaid provisions, but the initial order of the Magistrate under

section 156(3) Cr.P.C peremptorily reminding the police to perform its

duty and investigate a cognizable offence could be subject to challenge

in a criminal revision or other judicial proceeding.

44.We thus see that the orders for investigation are only an ancillary step

in aid of the investigation or trial, and are clearly interlocutory in

nature, similar to orders granting bail, or calling for records, or issuing

search warrants, or summoning witnesses and other like matters which

infringe no valuable rights of the prospective accused, and are not

amenable to challenge in a criminal revision, in view of the bar

contained in section 397(2) of the Code.

45.Also the situations in Madhu Limaye or in Amar Nath's cases are

clearly distinguishable, where refusal to consider the objections raised

on behalf of the accused may have prevented his being discharged and

may have caused him to be summoned to face trial, resulting in the

orders being described as neither final nor interlocutory, but

intermediate in nature. Revisions against the said intermediate orders

would therefore not attract the bar under section 397(2). Acceptance of

the objection to the direction for investigation under section 156(3) at

the pre-cognizance stage, would however not result in the closure of

the proceedings against the accused, as the complainant/informant

could have sought summoning of the accused by filing a complaint

under sections 190(a) read with 200 or by moving an application for

investigation before the S.P. or other superior officer under section

154(3) or s. 36 of the Code (if that step had not earlier been taken).

From the above discussion it follows that the said orders are clearly

interlocutory in nature, and not revisable in view of the bar contained

in section 397(2) of the Code.

46.As the direction for investigation passed by the Magistrate under

section 156(3) is purely interlocutory in nature, and involves no

substantial rights of the parties, we are of the view that the bar under

section 397(2) Cr.P.C to the entertainment of a criminal revision can

also not be circumvented by moving an application under section 482

Cr.P.C. As observed in State v. Navjot Sandhu, (2003) 6 SCC 641 in

paragraph 29:

47."29........This power should not be exercised against an express bar of

law engrafted in any other provision of the Criminal Procedure Code.

This power cannot be exercised as against an express bar in some

other enactment."

48.An application under section 482 Cr.P.C would also not lie against an

order for investigation under section 156(3) CrP.C., which is an

adjunct to the police power to investigate in Chapter XII of the Code,

because as held in Divine Retreat Centre v. State of Kerala & Othrs.,

AIR 2008 SC 1614 (paragraph 22, and Nirmaljit Singh Hoon v. State

of West Bengal & Anr., AIR 1972 SC 2639, (paragraph 35), whilst

conducting an investigation into a offence cognizable offence the

police authorities are exercising their statutory powers under sections

154 and 156 of the Code, and even the High Court in its inherent

powers under section 482 Cr.P.C cannot interfere with the exercise of

this statutory power.

49.Moreover the said inherent power needs to be utilized very sparingly

and with circumspection and as held by the Apex Court while

considering the jurisdiction of the High Court in Kurukshetra

University vs. State of Haryana, AIR 1977 SC 2229, ( paragraph 2):

"It ought to be realised that inherent powers do not confer an arbitrary

jurisdiction on the High Court to act according to whim or caprice.

That statutory power has to be exercised sparingly, with

circumspection and in the rarest of rare cases."

50.In para 9 in single judge decision in the case of Prof. Ram Naresh

Chaudhary v. State of U. P., 2008 Cri.L.J 1515 the following

observations have been made :-

"At this stage accused does not come into picture at all, nor can he be

heard. He has no locus to participate in the proceedings. He can at the

most stand and watch the proceedings. It must be remembered that it is

pre-cognizance stage. The nature of the order passed by the Magistrate

under Section 156(3) Cr. P.C. directing registration and investigation

of case is only a peremptory reminder or intimation to the police to

exercise its power of investigation under Section 156(1) Cr. P. C, as

has been held by Hon'ble Apex Court in the case of Devarappalli

Lakshaminarayana Reddy and others vs. Narayana Reddy and others

1976 ACC 230 : (AIR 1976 SC 1672). How such a reminder is subject

to revisional power of the Court is something which goes beyond

comprehension. From the nature of the order itself, it is clear that it is

an interlocutory order, not amenable to revisional power of the Court.

Section 397(2) Cr. P. C. specifically bars revision filed against

interlocutory orders."

51.Likewise in Rakesh Puri & Anr. v. State of U.P. (supra), Smt. Rekha

Verma and others v. State of U. P. and others 2007 (57) ACC 241 and

Abdul Aziz v. State of U.P., Paragraph 13 (supra) it has been held by

single judge decisions of this Court that neither a Criminal Revision

nor an Application under section 482 Cr.P.C. would lie against the

direction of the Magistrate to register and investigate an FIR in

exercise of powers under section 156(3) Cr.P.C. In Abdul Aziz it has

further been held that only after an FIR can an accused move the High

Court in its writ jurisdiction under Article 226 of the Constitution of

India for quashing of the FIR, but prior to the registration of the F.I.R.,

the prospective accused has no right to challenge that order.

52.Piqued by the over flowing dockets of petitions under section 482

Cr.P.C on miscellaneous matters, which have created a huge back log

affecting disposal by the High Court of grave matters under section

302 IPC etc., because the circumspection and caution required before

admitting such petitions under section 482 Cr.P.C is not being

exercised, Hon'ble G.P.Mathur J speaking for the bench has expressed

his disquiet thus in paragraph 38 of Hamida V. Rashid, AIR 2007

(Supp) SC 361:

"38......... Ends of justice would be better served if valuable time of the

Court is spent in hearing those appeals rather than entertaining

petitions under Section 482 Cr.P.C. at an interlocutory stage which are

often filed with some oblique motive in order to circumvent the

prescribed procedure, as is the case here, or to delay the trial which

will enable the accused to win over the witnesses by money or muscle

power or they may become disinterested in giving evidence, ultimately

resulting in miscarriage of justice."

53.As we have observed that the direction under section 156(3) of the

Code refers to a pre-cognizance stage, it does not strictly relate to

proceedings pending in a Court, but as mentioned herein-above it only

relates to directions to the police to carry out the investigation in a

cognizable case under Chapter XII of the Code. In this context it has

been clarified in State of W.B. and Ors. vs. Sujit Kumar Rana [(2004)

4 SCC 129], that inherent powers of the High Court come into play

only where an order has been passed by the Criminal Court which is

required to be set aside to secure the ends of justice or where the

proceedings pending before a court amounts to abuse of the process

of Court.

54.As on the basis of the aforesaid reasoning we have already held the

order under section 156(3) Cr.P.C not to be amenable to challenge in a

criminal revision or an application under section 482 Cr.P.C, it is not

necessary for this Court to go into the further question whether the

said order is administrative in nature as urged by Sri G.S. Chaturvedi

and the learned Government Advocate or judicial in nature as

contended by Sri D.S. Mishra and Sri Dileep Gupta. Following the

decision of the Apex Court in Asit Bhattacharjee v Hanuman Prasad

Ojha and Others, (2007) 5 SCC 786, we are also not inclined to

express any opinion on this issue, and leave the question open for

decision in a subsequent proceeding where an answer to this question

may become necessary.

55.In view of the aforesaid, our answer is that the revision against that the

order under section 156(3) of the Code directing the police to

investigate is clearly an interlocutory order and a Criminal Revision

(as also an order under section 482 Cr.P.C against the same) is barred

in view of section 397(2) of the Code.

56.C. Whether the view of the division bench in Ajay Malviya's

case( supra) that an order under Section 156(3) Cr.P.C was

amenable to revision, no writ petition would lie for challenging an

FIR lodged pursuant to the order under Section 156(3) Cr.P.C will

be maintainable, is correct.

57.Ajay Malviya (supra) relied on the following lines from paragraph 4 in

the decision in Devarapalli Lakshminarayana Reddy (supra) "........If

instead of proceeding under Chapter XV, he has, in the judicial

exercise of his discretion, taken action of some other kind, such as

issuing a search warrant for the purpose of investigation, or ordering

investigation by the police under section 156(3), he cannot be said to

have taken cognizance of any offence......" On that basis the Division

Bench inferred that an order under section 156(3) was a judicial order,

hence the said order was amenable to revision, and conversely a writ

against an FIR which had been lodged on the basis of such an order

was barred. However in view of our answers to the first two referred

questions that the learned Single Judge who had not gone into the

question whether an order under Section 156(3) Cr.P.C was judicial or

administrative in nature, has rightly held that the the said order was not

open to challenge by a prospective accused at the pre-cognizance

stage, and it was also an interlocutory order which is not revisable in

view of the bar contained under section 397(2) of the Code. That being

the position, the necessary inference is that the view of the Division

Bench in Ajay Malviya that the said order is amenable to revision and

no writ petition would lie for challenging the FIR can not be held to be

correct.

58.However it is made clear that the initial order for investigation under

section 156(3) is also not open to challenge in a writ petition, as it is

now beyond the pale of controversy that the province of investigation

by the police and the judiciary are not overlapping but complementary.

As observed by the Privy Council in paragraph 37 in Emperor v.

Khwaja Nazir Ahmad, AIR 1945 PC 18 when considering the scope of

the statutory powers of the police to investigate a cognizable case

under sections 154 and 156 of the Code, that it would be an

unfortunate result if the Courts in exercise of their inherent powers

could interfere in this function of the police. The roles of the Court and

police are "complementary not overlapping and the combination of

individual liberty with a due observance of law and order is only to be

obtained by leaving each to exercise its own function."

59.In State of Bihar v. J. A. C. Saldanha (AIR 1980 S C 326) while

dealing with the powers of investigation of a police officer as

contemplated in Section 156 of the Code of Criminal Procedure the

Apex Court has stated thus (at pp. 337-338 of AIR): "There is a clear-

cut and well demarcated sphere of activity in the field of crime

detection and crime punishment. Investigation of an offence is the

field exclusively reserved for the executive through the police

department the superintendence over which vests in the State

Government. The executive which is charged with a duty to keep

vigilance over law and order situation is obliged to prevent crime and

if an offence is alleged to have been committed it is its bounden duty

to investigate into the offence and bring the offender to book. Once it

investigates and finds an offence having been committed it is its duty

to collect evidence for the purpose of proving the offence. Once that is

completed and the investigating officer submits report to the Court

requesting the Court to take cognizance of the offence under Section

190 of the Code its duty comes to an end."

60.The Magistrate can not interfere with the investigation so long as the

police officer proceeds with the investigation in compliance with the

statutory powers mentioned in paragraph XII of the Code. Only in a

case where a police officer decides not to investigate an offence, that

the concerned Magistrate can intervene and either direct an

investigation or in the alternative, if he thinks fit, he himself can, at

once proceed or depute any Magistrate subordinate to him to proceed

to hold a preliminary inquiry into or otherwise to dispose of the case in

the manner provided in the Code. (Vide S.N. Sharma vs. Bipen Kumar

Tiwari and Ors., AIR 1970 SC 786, paragraph 7).

61.Even where the informant's plea for a direction for investigation under

section 156(3) Cr.P.C is refused by the Magistrate, as held by the three

judge bench of the Supreme Court in Aleque Padamsee v. Union of

India, AIR 2007 SC (Supp) 684, the remedy for the informant lies not

in filing a writ petition, but in filing a complaint under section 190 (1)

(b) read with section 200 of the Code. The legal position after review

of the authorities as noted in Aleque Padamsee in paragraph 7 was as

follows: "The correct position in law, therefore, is that the police

officials ought to register the FIR whenever facts brought to its notice

show that a cognizable offence has been made out. In case the police

officials fail to do so, the modalities to be adopted are as set out in

Section 190 read with Section 200 of the Code.

62.In Sakhiri Vasu v State of U.P. and Ors., AIR 2008 SC 907, it has

been observed in paragraph 27:"The High Court should discourage the

practice of filing a writ petitions or petitions under section 482 Cr.P.C.

simply because a person has a grievance that his FIR has not been

registered by the police. For this grievance, the remedy lies under

sections 36 and 154(3) before the concerned police officers, and if that

is of no avail, under section 156(3) Cr.P.C. before the Magistrate or by

filing a criminal complaint under section 200 Cr.P.C. and not be filing

a writ petition or a petition under section 482 Cr.P.C."

63.It is only at the stage that an FIR has been lodged, and in the rarest

cases where the FIR does not prima facie disclose the commission of a

cognizable offence, or where there is legal bar to proceeding with the

complaint/ FIR or if it is a case of no evidence or the evidence is

wholly inadequate for proving the charge, or it is demonstrated that the

FIR has been lodged in a mala fide manner, only in those

circumstances, with the exercise of extreme circumspection can a writ

petition be filed challenging the lodging of the FIR and that too strictly

in accordance with the parameters and subject to the restrictions

mentioned in State of Haryana v Bhajan Lal, AIR 1992 SC 604 and

the Full Bench decision of this Court in Ajit Singh @ Muraha v. State

of U.P., 2006 (56) ACC 433 and a catena of decisions of the Apex

Court and this Court on the issue. In view of what has been stated the

view taken in Ajay Malviya's case can not be held to be laying down

the correct law and needs to be clarified as above.

64.In this view of the matter, the Opinion of the Full bench on the three

questions posed is:

65.A. The order of the Magistrate made in exercise of powers under

Section 156(3) Cr.P.C directing the police to register and investigate is

not open to revision at the instance of a person against whom neither

cognizance has been taken nor any process issued.

B. An order made under Section 156(3) Cr.P.C is an interlocutory

order and remedy of revision against such order is barred under sub-

section (2) of Section 397 of the Code of Criminal Procedure, 1973.

C. The view expressed by a Division Bench of this Court in the case of

Ajay Malviya Vs. State of U.P and others reported in 2000(41) ACC

435 that as an order made under Section 156(3) of the Code of

Criminal Procedure is amenable to revision, and no writ petition for

quashing an F.I.R registered on the basis of the order will be

maintainable, is not correct.

66.As we have recorded a finding that no criminal revision will lie

against the orders passed by the Magistrate directing investigation

under section 156(3) Cr.P.C., no useful purpose will be served in

sending back the said Criminal Revisions to the Single Judge bench

hearing criminal revisions. The stay orders have already been vacated

by the Single Judge. All the connected criminal revisions accordingly

fail and are dismissed. There shall be no orders as to costs.

Order Date :- 22.12.2010

Ishrat