1

AFR

Reserved

Criminal Misc Case No 3778 of 2012

***

Jagannath Verma & Ors

Vs

State of U P & Anr

Appearance:

For Applicants : Shri Vishnu Kumar Srivastava, Advocate

Shri Murli Manohar Srivastava, Advocate

Shri N P Ojha, Advocate

For opp parties : Shri Umesh Verma, AGA

Shri Ran Vijai Singh, Advocate

Shri Indra Pratap Singh, Advocate

Hon’ble Dr Dhananjaya Yeshwant Chandrachud, Chief Justice

Hon’ble Dr D K Arora, J

Hon’ble D K Upadhyaya, J

(By Hon’ble Dr D Y Chandrachud, CJ)

The reference to the Full Bench

The reference to the Full Bench has been occasioned upon two orders

passed by learned Single Judges of this Court. By the first of those orders,

the following question was referred for consideration:

“Whether an order made under Section 156 (3) of

the Code of Criminal Procedure, 1973

1

is an interlocutory

order and the remedy of a revision against such an order

is barred under sub-section (2) of Section 397.”

Subsequently, a learned Single Judge of this Court, while noticing the

above reference, referred two additional questions for consideration by a

larger Bench:

1Code

2

“(1) Whether an order made under Section 156 (3)

of the Code rejecting an application for a direction to the

police to register and investigate, is revisable under

Section 397; and

(2) If the answer to Question (1) is in the

affirmative, then, whether in a revision filed against an

order rejecting an application under Section 156 (3), the

prospective accused is also a necessary party and is

required to be heard before a final order is passed.”

The Full Bench decision in Father Thomas

Before we enter upon the issues which are raised in this reference, it

would, at the outset, be necessary to traverse, for clarity of exposition, the

ground which has been covered by a decision of a Full Bench of this Court

in Father Thomas Vs State of UP

2

. In that case, a Single Judge of this

Court was of the view that as the accused has no locus standi before an order

of summoning is passed and since an order directing investigation is

interlocutory in nature, such an order is not subject to a revision in view of

the statutory bar contained in Section 397(2) of the Code. Section 397 (2)

provides that the power of revision which is conferred by sub-section (1)

upon the High Court or a Sessions Judge to call for and examine the record

of any proceeding before any inferior criminal court for the purpose of

satisfying itself of the correctness, legality or propriety of any finding,

sentence or order and as to the regularity of any proceedings shall not be

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

enquiry, trial or other proceeding. However, it had earlier been held in a

2(2011) CrLJ 2278

3

decision of this Court in Ajai Malviya Vs State of UP

3

, that since an order

under Section 156 (3) is a judicial order, an FIR registered on its basis could

not be challenged by a writ petition. Accepting that an order under Section

156 (3) is a judicial order, the learned Single Judge who made the reference

in Father Thomas was of the view that since the order is nonetheless

interlocutory in nature, it could not be challenged by a prospective accused

who has no locus standi at the stage of investigation and, hence, a criminal

revision is not maintainable for challenging such an order. The reference

before the Full Bench in Father Thomas was of the following three

questions:

A. Whether the order of the Magistrate made in

exercise of powers under Section 156(3) CrPC 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)

CrPC 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;

and

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, [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 FIR registered on the basis of the order will

be maintainable, is correct.

32000 ACJ 2730

4

The judgment of the Full Bench on each of these three questions

which were referred, held thus:

(A) At the pre-cognizance stage when only a direction has been issued

by the magistrate under Section 156 (3) to investigate, a prospective accused

has no locus standi to challenge a direction for investigation of a cognizable

case before cognizance or the issuance of process;

(B) An order under Section 156 (3) passed by a magistrate directing a

police officer to investigate a cognizable case is not an order which impinges

on the valuable rights of the party. An order by the magistrate for

investigation is an incidental step in aid of investigation and trial and is

interlocutory in nature, similar to orders granting bail, calling for records,

issuing search warrants, summoning witnesses and other like matters which

do not infringe upon a valuable right of a prospective accused and is, hence,

not amenable to a challenge in a criminal revision in view of the bar

contained in Section 397 (2). The bar under Section 397 (2) to the

entertaining of a criminal revision cannot be circumvented by moving an

application under Section 482; and

(C) An order made under Section 156 (3) is an interlocutory order and

the remedy of a revision against such an order is barred under sub-section

(2) of Section 397. The decision in Ajai Malivya’s case was held not to lay

down the correct position in law.

The present case

In the proceedings in which the present reference to the Full Bench

has been occasioned, an application was moved before the Chief Judicial

Magistrate, Ambedkar Nagar against the petitioners by opposite party no.2

5

under Section 156 (3). The Magistrate, after considering the contents of the

complaint, came to the conclusion that there was no ground for directing the

police to register and investigate the case, upon which the application under

Section 156 (3) was rejected. Aggrieved, opposite party no.2 preferred a

revision before the Sessions Judge which was allowed and while setting

aside the order of the Chief Judicial Magistrate, the latter was directed to

decide the application under Section 156 (3) afresh. Aggrieved by that order

of the Sessions Judge, this Court was moved by the petitioners. The

submission of the petitioners was that (i) the Sessions Judge decided the

revision without furnishing to them an opportunity of hearing though,

according to them, they were necessary parties before the revisional court

since their “valuable rights” were going to be affected by the order that was

sought before and was eventually passed by the revisional court; (ii) in view

of the decision of the Full Bench in Father Thomas, the remedy of a

criminal revision was barred under Section 397 (2) since an order passed by

a magistrate on an application under Section 156 (3) is an interlocutory

order.

The learned Single Judge in a referring order dated 15 May 2014

observed that in Father Thomas, the Full Bench was examining a case in

which a prospective accused had challenged an order passed under Section

156 (3) by which the Magistrate had directed the registration of a First

Information Report and an investigation. The learned Single Judge noted

that in the decision of the Supreme Court in Aleque Padamsee Vs Union of

India

4

, it has been held that even where the application of an informant for a

4(2007) 6 SCC 171

6

direction to register and investigate under Section 156 (3) is refused by the

magistrate, the remedy would not lie in filing a writ petition but in a

complaint under Section 190 (1) (b) read with Section 200 of the Code. In

the view of the learned Single, under the provisions of the Code, a duty is

cast upon the police to register and investigate a case whenever information

of the commission of a cognizable offence is brought to the notice of the

police. It is only when the police refuses to register a case in a cognizable

offence that the informant may approach the magistrate under Section 156

(3) for a direction to the police to register and investigate. If the magistrate

finds from a perusal of the application that the commission of a cognizable

offence is made out, he may direct the police to register and investigate. On

the other hand, when the complaint does not disclose the commission of any

cognizable offence, the magistrate can reject the application. In some cases,

it was held, the magistrate may treat an application under Section 156 (3) as

a complaint and while taking cognizance under Section 190 (1) (b), follow

the procedure of a complaint case. The problem, it was noted, arises where

an informant cannot himself collect evidence against the accused and

produce it before the magistrate. In such cases, investigation by the police is

necessary. Where the magistrate rejects an application under Section 156 (3)

without application of mind and the revision is held to be barred under

Section 397, it was held that the informant would be left without a remedy

because even if he files a complaint before the magistrate, he may not be

able to collect and produce all the evidence needed to prove the guilt of the

accused.

7

In this background, the learned Single Judge observed that while

answering the second question which was referred, the Full Bench in Father

Thomas held that an order under Section 156 (3) is interlocutory. However,

it is not clear as to whether an order passed by the magistrate, rejecting an

application under Section 156 (3) is also to be treated as an interlocutory

order. This legal position requires, in the view of the Single Judge,

consideration by a larger Bench and hence the present reference has been

occasioned. The learned Single Judge has also felt himself unable to agree

with a contrary view of another learned Single Judge in Criminal Revision

No. 532 of 2013, holding that an order rejecting an application under Section

156 (3) is interlocutory and that the remedy of a revision is barred.

Submissions

On behalf of the petitioners, it has been submitted that:

(i)In Father Thomas, the Full Bench has held that an order made

under Section 156 (3) is an interlocutory order while answering the

second question which was referred for adjudication. An order

under Section 156 (3) would include an order rejecting an

application for the registration of an offence and investigation, and

would not only relate to a situation where a magistrate has directed

the registration of an offence and investigation by the police.

Consequently, the second question which was decided in Father

Thomas, sub silentio covers also a situation where an application

for a direction to register an FIR and to investigate is rejected.

Otherwise, if the only issue pertained to an order made under

8

Section 156 (3) directing the police to register and investigate,

there was no need to frame the second question;

(ii)In Aleque Padamsee (supra), the Supreme Court held that where

the police have failed to register an FIR despite facts being brought

to the notice showing that a cognizable offence has been made out,

the modalities contained in Section 190 read with Section 200 of

the Code would have to be observed. Since an alternative and

efficacious remedy of filing a complaint under Section 190 read

with Section 200 is available, an order passed under Section 156

(3) refusing a direction to register an offence and to investigate,

does not decide any vital rights so as to be amenable to a criminal

revision under Section 397;

(iii)In view of the decision of the Supreme Court in Raghu Raj Singh

Rousha Vs Shivam Sundaram Promoters Private Limited

5

, if it

is held that a criminal revision is amenable under Section 397

against an order of the magistrate refusing to direct the registration

of a First Information Report and to investigate, then necessarily

the prospective accused would be entitled to the right of a hearing

before the revisional court.

On the other hand, it has been urged on behalf of the State by Shri

Umesh Verma, learned AGA, who has fairly assisted the Court, that:

(i)The provisions of Chapter XII of the Code which deal with

information to the police and their powers to investigate, fall in a

5(2009) 2 SCC 363

9

different sphere than complaints to magistrates which are governed

by Chapter XV;

(ii)Under Section 156 (3), the magistrate is only required to examine

whether, from the case of the informant, a cognizable offence is

made out. The prospective accused is not arrayed as a party. The

grievance of the informant is against the State for not lodging a

First Information Report. If the application is allowed, the police

would register an FIR and investigate the case. This is at the pre-

cognizance stage where the accused has neither a right of hearing

nor of being impleaded to the proceedings;

(iii)If an application under Section 156 (3) is rejected, the procedure of

an investigation by the police is shut out. Though, a complaint can

be filed under Section 200 before a magistrate and Section 202

contemplates that the magistrate may, on receipt of the complaint,

postpone the issue of process and direct an investigation to be

made by a police officer, this is for “the purpose of deciding

whether or not there is sufficient ground for proceeding”. An

investigation by the police under Section 202 is not mandatory.

Whereas an investigation by the police under Section 156 (3) is

unfettered in nature, an investigation which a magistrate may direct

by a police officer under Section 202, is of a limited nature and is

an aid to the magistrate. With the rejection of an application under

Section 156 (3), the proceeding under Chapter XII terminates. The

duty to investigate is primarily that of the State and that avenue is

closed by the rejection of an application under Section 156 (3).

10

Consequently, an order refusing to direct the registration of a First

Information Report and investigation by the police under Section

156 (3) vitally affects the informant and would be revisable under

Section 397. Such an order cannot be regarded as being

interlocutory in nature;

(iv)In the judgment of the Supreme Court in Devarapalli

Lakshminarayana Reddy Vs V Narayana Reddy

6

, the Supreme

Court made a distinction between a police investigation under

Section 156 (3) and an investigation directed by the magistrate

under Section 202. The first is exercisable at the pre-cognizance

stage, while the second at the post-cognizance stage when the

magistrate is in seisin of the case. Once a magistrate has taken

cognizance and follows the procedure specified in Chapter XV, he

cannot switch back to the pre-cognizance stage and avail of

Section 156 (3). Section 202 only assists the magistrate in

completing the proceedings instituted on a complaint before him;

(v)The decision of the Supreme Court in Raghu Raj Singh Rousha

(supra) dealt with a situation where a complaint had been filed

under Section 200, accompanied by an application under Section

156 (3). The Magistrate took cognizance but rejected the

application under Section 156 (3). The Supreme Court held that the

Magistrate had taken cognizance and had applied his mind. While

doing so, he had refused to exercise his jurisdiction under Section

156 (3), in which event it was held that the High Court ought to

6(1976) 3 SCC 252

11

have impleaded the appellant against whom a complaint of a

cognizable offence had been filed;

(vi)The consistent position in law is that at the pre-cognizance stage,

the accused is not given a right to be heard and no right of the

accused is infringed by a mere direction to register an offence and

to investigate, to the police authorities. The prospective accused

has no right to be heard, either at the stage of Section 154 (1) or,

where an officer in charge of a police station has refused to record

a First Information Report, at the stage of Section 154 (3) before

the Superintendent of Police. Consequently, while issuing a

direction under Section 156 (3), a magistrate empowered under

Section 190 only orders an investigation into a cognizable case

under Section 156 (1) of the Code. A prospective accused, who has

no locus standi at the stage of an investigation under Section 156

(1), would have no higher right when a magistrate under Section

156 (3) orders an investigation.

The learned counsel appearing on behalf of opposite party no.2 has

adopted the submissions which have been urged on behalf of the State. We

have perused both sets of written submissions tendered before the Court in

the proceedings.

The statutory provisions

Chapter XII of the Code is titled as:

“Information to the police and their powers to investigate.”

Section 154 provides as follows:

12

“154. Information in cognizable cases. (1) Every

information relating to the commission of a cognizable offence,

if given orally to an officer in charge of a police station, shall

be reduced to writing by him or under his direction, and be read

over to the informant; and every such information, whether

given in writing or reduced to writing as aforesaid, shall be

signed by the person giving it, and the substance thereof shall

be entered in a book to be kept by such officer in such form as

the State Government may prescribe in this behalf:

Provided that if the information is given by the woman

against whom an offence under section 326A, section

326B, section 354, section 375, section 376, section

376A, section 376B, section 376C, section 376D, section

376E and section 509 of the Indian Penal Code (45 of

1860) is alleged to have been committed or attempted,

then such information shall be recorded, as far as

possible, by a woman police officer and such woman

shall be provided legal assistance and also the

assistance of a healthcare worker or women’s

organization or both:

Provided further that—

(a) in the event that the person against whom an

offence under section 354, section 354A, section 354B,

section 354C, section 354D, sub-section (1) or sub-

section (2) of section 376, section 376A, section 376B,

section 376C, section 376D or section 376E of the

Indian Penal Code (45 of 1860) is alleged to have been

committed or attempted is temporarily or permanently

mentally or physically disabled, then such information

shall be recorded by a police officer, at the residence of

the person seeking to report such offence or at a

convenient place of such person’s choice, in the

13

presence of a special educator or an interpreter, as the

case may be;

(b) the recording of such information may be

videographed;

(c) the police officer shall get the statement of the

person recorded by a Judicial Magistrate under clause

(a) of sub-section (5A) of section 164 as soon as

possible.

(2) A copy of the information as recorded under sub-

section (1) shall be given forthwith, free of cost, to the

informant.

(3) Any person aggrieved by a refusal on the part of

an officer in charge of a police station to record the

information referred to in subsection (1) may send the

substance of such information, in writing and by post, to

the Superintendent of Police concerned who, if satisfied

that such information discloses the commission of a

cognizable offence, shall either investigate the case himself

or direct an investigation to be made by any police officer

subordinate to him, in the manner provided by this Code,

and such officer shall have all the powers of an officer in

charge of the police station in relation to that offence.”

Sub-section (1) of Section 154 contains a mandate to the officer in

charge of a police station to reduce information orally given, relating to the

commission of a cognizable offence, into writing. The substance thereof has

to be entered in a book kept by such officer in the form as prescribed by the

State Government. Sub-section (3) of Section 154 provides a remedy to a

person who is aggrieved by the refusal of the officer in charge of a police

station to record the information referred to in sub-section (1) relating to the

14

commission of a cognizable offence. Any person aggrieved by such a

refusal, may transmit the substance of the information to the Superintendent

of Police. If the Superintendent of Police is satisfied that the information

discloses the commission of a cognizable offence, he must either investigate

the case himself or direct an investigation by a police officer subordinate to

him. Section 154 does not contemplate a magisterial intervention or an order

of a magistrate for an investigation into a cognizable case. Section 155 (2),

on the other hand, provides that a police officer shall not investigate a non-

cognizable case without the order of a magistrate having the power to try

such a case or to commit the case for trial.

Section 156 provides for the power of a police officer to investigate a

cognizable case and is as follows:

“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 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.”

Under sub-section (1) of Section 156, the power of a police officer to

investigate a cognizable case, which a Court with jurisdiction over the local

15

area within the limits of such station would have power to enquire into or try

under Chapter XIII, is untrammeled in the sense that it does not require an

order of a magistrate. Sub-section (3) of Section 156, however, allows any

magistrate who is empowered under Section 190 to order an investigation

into a cognizable case by an officer in charge of a police station. Section 157

deals with the procedure for investigation. Where an officer in charge of a

police station has reason to suspect the commission of an offence which he

is empowered to investigate under Section 156, either from information

received or otherwise, he has to send a report forthwith to the magistrate

empowered to take cognizance of an offence upon a police report and must

proceed in person or depute a subordinate officer to proceed to the spot,

investigate the facts and circumstances and to take measures for discovery

and arrest of the offender. Under clause (a) of the first proviso to Section

157, when the information as to the commission of any such offence is given

against any person by name, and the case is not of a serious nature, the

officer in charge of a police station need not proceed in person or depute a

subordinate officer to make an investigation on the spot. Under clause (b) of

the said proviso, if it appears to the officer in charge of a police station that

there is no sufficient ground of entering on an investigation, he shall not

investigate the case. Section 157 (2) specifies the contents of a report which

the police officer has to furnish in each of the cases mentioned in clauses (a)

and (b) of the proviso to sub-section (1). Upon receiving such a report,

Section 159 provides that the magistrate may direct an investigation or, if he

thinks fit, at once proceed to hold a preliminary enquiry into or otherwise

dispose of the case, in the manner provided in the Code.

16

Section 190 forms a part of Chapter XIV which is titled “conditions

requisite for initiation of proceedings.” Section 190 provides as follows:

“190. Cognizance of offences by Magistrates. (1)

Subject to the provisions of this Chapter, any Magistrate

of the first class, and any Magistrate of the second class

specially empowered in this behalf under sub-section (2),

may take cognizance of any offence -

(a) upon receiving a complaint of facts which

constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other

than a police officer, or upon his own knowledge,

that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any

Magistrate of the second class to take cognizance under

sub-section (1) of such offences as are within his

competence to inquire into or try.”

A magistrate under Section 190 may proceed to take cognizance of

any offence (i) upon receiving a complaint of facts which constitute such

offence; (ii) upon a police report of such facts; or (iii) upon information

received from any person other than a police officer, or upon his own

knowledge, that such offence has been committed.

The expression ‘complaint’ is defined in Section 2(d) as follows:

“(d) "complaint" means any allegation made orally

or in writing to a Magistrate, with a view to his taking

action under this Code, that some person, whether known

or unknown, has committed an offence, but does not

include a police report.

17

Explanation: A report made by a police officer in a

case which discloses, after investigation, the commission

of a non-cognizable offence shall be deemed to be a

complaint; and the police officer by whom such report is

made shall be deemed to be the complainant.”

Chapter XV of the Code deals with complaints to magistrates. Section

200 provides as follows:

“200. Examination of complainant. A Magistrate

taking cognizance of an offence on complaint shall

examine upon oath the complainant and the witnesses

present, if any, and the substance of such examination

shall be reduced to writing and shall be signed by the

complainant and the witnesses, and also by the

Magistrate:

Provided that, when the complaint is made in writing,

the Magistrate need not examine the complainant and the

witnesses-

(a) if a public servant acting or purporting to act in the

discharge of his official duties or a Court has made

the complaint; or

(b) if the Magistrate makes over the case for inquiry

or trial to another Magistrate under section 192:

Provided further that if the Magistrate makes over the

case to another Magistrate under section 192 after

examining the complainant and the witnesses, the latter

Magistrate need not re-examine them.”

Under Section 200, the magistrate taking cognizance of an offence

on a complaint has to examine the complainant and the witnesses present, if

18

any, upon oath. Section 202, however, enables the magistrate to postpone

the issue of process against the accused on receipt of a complaint of an

offence of which he is authorized to take cognizance or which has been

made over to him under Section 192 and to follow one of the following

modalities:

(i)Either enquire into the case himself; or

(ii)Direct an investigation to be made by a police officer or by such

other person as he deems fit for the purpose of deciding whether or

not there is sufficient ground for proceeding.

However, under clause (a) of the proviso to sub-section (1), no such

direction for investigation can be made where it appears to the magistrate

that the offence complained of is triable exclusively by the Court of Session.

Similarly, under clause (b), no such direction for investigation may be made

where the complaint has not been made by the court, unless the complainant

and the witnesses present, if any, have been examined on oath under Section

200. Section 202 provides as follows:

“202. Postponement of issue of process. (1) Any

Magistrate, on receipt of a complaint of an offence of

which he is authorised to take cognizance or which has

been made over to him under section 192, may, if he

thinks fit, [and shall, in a case where the accused is

residing at a place beyond the area in which he exercises

his jurisdiction,] postpone the issue of process against the

accused, and either inquire into the case himself or direct

an investigation to be made by a police officer or by such

other person as he thinks fit, for the purpose of deciding

whether or not there is sufficient ground for proceeding:

19

Provided that no such direction for investigation shall be

made-

(a) where it appears to the Magistrate that the

offence complained of is triable exclusively by

the Court of Session; or

(b) where the complaint has not been made by a

Court, unless the complainant and the witnesses

present (if any) have been examined on oath

under section 200.

(2)In an inquiry under sub-section (1), the Magistrate

may, if he thinks fit, take evidence of witnesses on oath:

Provided that if it appears to the Magistrate that the

offence complained of is triable exclusively by the Court

of Session, he shall call upon the complainant to produce

all his witnesses and examine them on oath.

(3) If an investigation under sub-section (1) is made

by a person not being a police officer, he shall have for

that investigation all the powers conferred by this Code

on an officer-in-charge of a police station except the

power to arrest without warrant.”

Section 203 provides that upon considering the statements on oath, if

any, of the complainants and of the witnesses and the result of the enquiry or

investigation, if any, under Section 202, where the magistrate is of opinion

that there is no sufficient ground for proceeding, he shall dismiss the

complaint recording, briefly, his reasons for so doing.

20

Analysis

Section 154 speaks of “every information relating to the commission

of a cognizable offence”. Under Section 154 (1), an officer in charge of a

police station is under a mandate and an obligatory duty to cause the

substance of the information relating to the commission of a cognizable

offence to be entered in a book to be kept by the officer in the form

prescribed by the State Government. Sub-section (3) of Section 154 provides

a remedy, where an officer in charge of a police station refuses to record the

information referred to in sub-section (1), to any person aggrieved by such a

refusal. The remedy is to transmit the information to the Superintendent of

Police who, upon satisfaction that the information discloses the commission

of a cognizable offence, shall either investigate the case himself or direct an

investigation to be made by an officer subordinate to him. Section 156

enables an officer in charge of a police station to investigate a cognizable

case without an order of a magistrate. Sub-section (3) of Section 156 enables

a magistrate who has been duly empowered under Section 190 to order such

an investigation. By lodging a First Information Report, the informant can

set the criminal law in motion. The investigating authority is able to obtain

information about an alleged criminal activity so as to pursue an

investigation, trace the accused and make him accountable under the

criminal law.

In a recent judgment of the Constitution Bench of the Supreme Court

in Lalita Kumari Vs Government of Uttar Pradesh

7

, it has been held that

the essential requirement for recording an FIR is that there must be

7(2014) 2 SCC 1

21

information and that information must disclose a cognizable offence. If

information falling within the meaning of sub-section (1) of Section 154 is

led before an officer in charge of a police station, he has no option but to

enter the substance of that information in the prescribed form and to register

a case on the basis of such information. Section 154 (1) has been held to be

mandatory, the use of the word “shall” being an expression of the legislative

intent:

“Consequently, the condition that is sine qua non for

recording an FIR under Section 154 of the Code is that there

must be information and that information must disclose a

cognizable offence. If any information disclosing a

cognizable offence is led before an officer in charge of the

police station satisfying the requirement of Section 154(1),

the said police officer has no other option except to enter

the substance thereof in the prescribed form, that is to say,

to register a case on the basis of such information. The

provision of Section 154 of the Code is mandatory and the

officer concerned is duty bound to register the case on the

basis of information disclosing a cognizable offence. Thus,

the plain words of Section 154(1) of the Code have to be

given their literal meaning.”

8

The reason why the Code casts an affirmative obligation upon an

officer in charge of a police station is because investigation of offences and

prosecution of offenders is a fundamental and inalienable duty of the State.

Hence, in the case of a cognizable offence, a duty and an obligation to

register an FIR is cast upon the police. The provisions of Section 154 (1) do

not admit to an element of discretion vesting in the officer in charge of a

8Paragraph 49 at page 35-36.

22

police station on whether or not to record the substance of the information

received by him of the commission of a cognizable offence in the prescribed

form. There exists a vital societal interest in the investigation and

prosecution of crime. Coupled with this is the societal interest in recognising

the rights of a victim of a crime. Both are intrinsic elements of a society

governed by the rule of law and which regards a stable social order as a vital

object of law. In Lalita Kumari (supra), this position was reiterated in the

following observations:

“53. Investigation of offences and prosecution of

offenders are the duties of the State. For “cognizable

offences”, a duty has been cast upon the police to register

FIR and to conduct investigation except as otherwise

permitted specifically under Section 157 of the Code. If a

discretion, option or latitude is allowed to the police in the

matter of registration of FIRs, it can have serious

consequences on the public order situation and can also

adversely affect the rights of the victims including

violating their fundamental right to equality.

54. Therefore, the context in which the word

“shall” appears in Section 154(1) of the Code, the object

for which it has been used and the consequences that will

follow from the infringement of the direction to register

FIRs, all these factors clearly show that the word “shall”

used in Section 154(1) needs to be given its ordinary

meaning of being of a “mandatory” character. The

provisions of Section 154(1) of the Code, read in the light

of the statutory scheme, do not admit of conferring any

discretion on the officer in-charge of the police station for

embarking upon a preliminary inquiry prior to the

registration of an FIR. It is settled position of law that if

23

the provision is unambiguous and the legislative intent is

clear, the court need not call into it any other rules of

construction.”

Section 154 (1) significantly uses the expression “information”

without the qualification of an adjective such as “reasonable” or “credible”.

The reasonableness or credibility of the information is hence not a condition

precedent to the registration of a case. The import of casting a mandatory

obligation on the officer in charge of a police station to record information

relating to the commission of a cognizable offence and to register a case

thereon, has been emphasized in the decisions of the Supreme Court in State

of Haryana Vs Bhajan Lal

9

and in Prakash Singh Badal Vs State of

Punjab

10

. At the same time, the arrest of an accused immediately on the

registration of an FIR has been held not to be mandatory. The Code confers

a power upon the police to close a matter both before and after the

investigation. A police officer can foreclose an FIR before an investigation

under Section 157, if if appears to him that there is no sufficient ground to

investigate it. The police officer is empowered also to investigate the matter

and file a final report under Section 173, seeking closure. In Lalita Kumari,

it was held that the police is not liable to launch an investigation in every

FIR which is mandatorily registered on receiving information relating to the

commission of a cognizable offence. The scheme of the Code not only

ensures that the time of the police should not be wasted on false and

frivolous information but also that the police should not intentionally refrain

from doing its duty of investigating cognizable offences. The Code,

91992 Supp (1) SCC 335

10(2007) 1 SCC 1

24

therefore, contains inbuilt safeguards to prevent a likelihood of misuse. At

this stage, the important aspect to mention is that the mandatory requirement

in Section 154 is consistent with the need to protect the societal interest in

due prosecution of crime and the interest of the victim in ensuring that the

offender is brought to book.

The decision of the Constitution Bench in Lalita Kumari holds that

though the registration of an FIR on receipt of information relating to the

commission of a cognizable offence is mandatory, yet there may be

instances where a preliminary enquiry is required. In that context, the

observation of the Supreme Court are as follows:

“120.1. The registration of FIR is mandatory under

Section 154 of the Code, if the information discloses

commission of a cognizable offence and no preliminary

inquiry is permissible in such a situation.

120.2. If the information received does not disclose

a cognizable offence but indicates the necessity for an

inquiry, a preliminary inquiry may be conducted only to

ascertain whether cognizable offence is disclosed or not.

120.3. If the inquiry discloses the commission of a

cognizable offence, the FIR must be registered. In cases

where preliminary inquiry ends in closing the complaint, a

copy of the entry of such closure must be supplied to the

first informant forthwith and not later than one week. It

must disclose reasons in brief for closing the complaint

and not proceeding further.

120.4. The police officer cannot avoid his duty of

registering offence if cognizable offence is disclosed.

Action must be taken against erring officers who do not

25

register the FIR if information received by him discloses a

cognizable offence.

120.5. The scope of preliminary inquiry is not to

verify the veracity or otherwise of the information

received but only to ascertain whether the information

reveals any cognizable offence.

120.6. As to what type and in which cases

preliminary inquiry is to be conducted will depend on the

facts and circumstances of each case. The category of

cases in which preliminary inquiry may be made are as

under:

(a) Matrimonial disputes/ family disputes

(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e) Cases where there is abnormal delay/laches in

initiating criminal prosecution, for example, over

3 months' delay in reporting the matter without

satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not

exhaustive of all conditions which may warrant

preliminary inquiry.

120.7. While ensuring and protecting the rights of

the accused and the complainant, a preliminary inquiry

should be made time-bound and in any case it should not

exceed 7 days. The fact of such delay and the causes of it

must be reflected in the General Diary entry.”

The power which is conferred upon the magistrate to order an

investigation under Section 156 (3) is before taking cognizance of an

offence. Section 156 (3) provides that any magistrate empowered under

26

Section 190 may order such an investigation into any cognizable case by an

officer in charge of a police station.

Section 190 empowers a magistrate to take cognizance of any offence:

(i) upon receiving a complaint of facts which constitute such offence; (ii)

upon a police report of such facts; and (iii) upon information received from

any person other than a police officer, or upon his own knowledge, that such

an offence has been committed. Under Section 190, a magistrate is not

bound, once a complaint is filed, to take cognizance if the facts stated in the

complaint disclose the commission of any offences. Section 190 uses the

expression that 'the magistrate may take cognizance' and not that 'the

magistrate must take cognizance'. Though, a complaint may disclose a

cognizable offence, a magistrate may well be justified in sending the

complaint under Section 156 (3) to the police for investigation. In Gopal

Das Sindhi Vs State of Assam

11

, the Supreme Court held that there is no

reason why the time of the magistrate should be wasted when primarily the

duty to investigate in cases involving cognizable offences is with the police.

The magistrate before taking cognizance may well refer the complaint under

Section 156 (3) to the police for investigation. Cognizance, it is well settled

under CrPC, is where the magistrate on receiving a complaint applies his

mind for the purposes of proceeding under Section 200 and the succeeding

Sections in Chapter XV of the Code. If, instead of proceeding under Chapter

XV, the magistrate orders an investigation by the police under Section 156

(3), he is not said to have taken cognizance of an offence. In Mohd Yousuf

11AIR 1961 SC 986

27

Vs Afaq Jahan

12

, this position was elaborated in the following observations

of the Supreme Court:

“ The clear position therefore is that any Judicial

Magistrate, before taking cognizance of the offence, can

order investigation under Section 156(3) of the Code. If he

does so, he is not to examine the complainant on oath

because he was not taking cognizance of any offence

therein. For the purpose of enabling the police to start

investigation it is open to the Magistrate to direct the

police to register an FIR. There is nothing illegal in doing

so. After all registration of an FIR involves only the

process of entering the substance of the information

relating to the commission of the cognizable offence in a

book kept by the officer in charge of the police station as

indicated in Section 154 of the Code. Even if a Magistrate

does not say in so many words while directing

investigation under Section 156(3) of the Code that an FIR

should be registered, it is the duty of the officer in charge

of the police station to register the FIR regarding the

cognizable offence disclosed by the complaint because

that police officer could take further steps contemplated in

Chapter XII of the Code only thereafter.”

When a written complaint disclosing a cognizable offence is made

before a magistrate, he may take cognizance under Section 190 (1) (a) and

proceed in accordance with the provisions of Chapter XV. The other option

available to the magistrate is to transmit the complaint to the police station

concerned under Section 156 (3), before taking cognizance, for

investigation. Once a direction is issued by the magistrate under Section 156

(3), the police is required to investigate under sub-section (1) of that Section

12(2006) 1 SCC 627

28

and to submit a report under Section 173 (2) on the complaint after

investigation, upon which the magistrate may take cognizance under Section

190 (1)(b). (Madhu Bala Vs Suresh Kumar

13

).

In Sakiri Vasu Vs State of Uttar Pradesh

14

, the Supreme Court

followed the earlier decision in Mohd Yousuf (supra) and held that the

power of the magistrate to order a further investigation under Section 156

(3) is an independent power and is wide enough to include all such powers

in a magistrate which are necessary for ensuring a proper investigation and

would include the power of registration of an FIR and of ordering a proper

investigation if the magistrate is satisfied that the proper investigation has

not been done or is not being done by the police. Section 156 (3) was

construed to include all such incidental powers as are necessary for ensuring

a proper investigation. The same principle has been adopted in the decision

of the Supreme Court in Mona Panwar Vs High Court of Judicature at

Allahabad

15

:

“18. When the complaint was presented before the

appellant, the appellant had mainly two options available

to her. One was to pass an order as contemplated by

Section 156(3) of the Code and second one was to direct

examination of the complainant upon oath and the

witnesses present, if any, as mentioned in Section 200 and

proceed further with the matter as provided by Section 202

of the Code. An order made under sub-section (3) of

Section 156 of the Code is in the nature of a peremptory

reminder or intimation to the police to exercise its plenary

power of investigation under Section 156(1). Such an

13(1997) 8 SCC 476

14(2008) 2 SCC 409

15(2011) 3 SCC 496

29

investigation embraces the entire continuous process

which begins with the collection of evidence under Section

156 and ends with the final report either under Section 169

or submission of charge sheet under Section 173 of the

Code. A Magistrate can under Section 190 of the Code

before taking cognizance ask for investigation by the

police under Section 156(3) of the Code. The Magistrate

can also issue warrant for production, before taking

cognizance. If after cognizance has been taken and the

Magistrate wants any investigation, it will be under

Section 202 of the Code.

19. The phrase "taking cognizance of" means

cognizance of an offence and not of the offender. Taking

cognizance does not involve any formal action or indeed

action of any kind but occurs as soon as a Magistrate

applies his mind to the suspected commission of an

offence. Cognizance, therefore, takes place at a point when

a Magistrate first takes judicial notice of an offence. This

is the position where the Magistrate takes cognizance of

an offence on a complaint or on a police report or upon

information of a person other than a police officer. Before

the Magistrate can be said to have taken cognizance of an

offence under Section 190(1)(b) of the Code, he must have

not only applied his mind to the contents of the complaint

presented before him, but must have done so for the

purpose of proceeding under Section 200 and the

provisions following that Section. However, when the

Magistrate had applied his mind only for ordering an

investigation under Section 156(3) of the Code or issued a

warrant for the purposes of investigation, he cannot be said

to have taken cognizance of an offence.”

30

The same principle has been reiterated in Samaj Parivartan

Samudaya Vs State of Karnataka

16

.

There is a fundamental distinction between the provisions of Chapter

XII and of Chapter XV of the Code. This came up for consideration before

the Supreme Court in Devarapalli Lakshminarayana Reddy Vs V

Narayana Reddy (supra). The Supreme Court noted that, whereas Section

156 (3) occurs in Chapter XII dealing with information to the police and the

powers of the police to investigate, Section 202 forms part of Chapter XV

which relates to complaints to magistrates. The Supreme Court observed that

the power to order a police investigation under Section 156 (3) is distinct

from the power to direct an investigation under Section 202 (1). Section 156

(3) is at the pre-cognizance stage, Section 202 is at the post-cognizance

stage. Moreover, once a magistrate has taken cognizance and has adopted

the procedure under Chapter XV, it is not open to him then to go back to the

pre-cognizance stage and avail of Section 156 (3). Investigation by the

police under Section 156 (3) is in exercise of the plenary power to

investigate offences which begins with collection of evidence and ends with

a report under Section 173 (2). The investigation, on the other hand, which

Section 202 contemplates, is of a different nature and is for the purpose of

enabling the magistrate to decide whether or not there is sufficient ground

for proceeding. The Supreme Court observed as follows:

“Section 156(3) occurs in Chapter XII, under the

caption: "Information to the Police and their powers to

investigate"; while Section 202 is in Chapter XV which

bears the heading "Of complaints to Magistrates". The

16(2012) 7 SCC 407 at para 26, p 420

31

power to order police investigation under Section

156(3) is different from the power to direct

investigation conferred by Section 202(1). The two

operate in distinct spheres at different stages. The first

is exercisable at the pre cognizance stage, the second at

the post-cognizance stage when the magistrate is in

seisin of the case. That is to say in the case of a complaint

regarding the commission of a cognizable offence, the

power under Section 156(3) can be invoked by the

Magistrate before he takes cognizance of the offence under

Section 190(1)(a). But if he once takes such cognizance

and embarks upon the procedure embodied in Chapter

XV, he is not competent to switch back to the pre-

cognizance stage and avail of Section 156(3). It may be

noted further 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).

Such an investigation embraces the entire continuous

process which begins with the collection of evidence under

Section 156 and ends with a report or charge-sheet under

Section 173. On the other hand, Section 202 comes in at a

stage when some evidence has been collected by the

magistrate in proceedings under Chapter XV, but the same

is deemed insufficient to take a decision as to the next step

in the prescribed procedure. In such a situation, the

magistrate is empowered under Section 202 to direct,

within the limits circumscribed by that section, an

investigation "for the purpose of deciding whether or not

there is sufficient ground for proceeding ". Thus the

object of an investigation under Section 202 is not to

initiate a fresh case on police report but to assist the

magistrate in completing proceedings already

32

instituted upon a complaint before him.” (emphasis

supplied)

Noting the distinction between an investigation under Chapter XII and

proceedings under Chapter XV, the Supreme Court in Samaj Parivartan

Samudaya (supra), held as follows:

“... In the former case, it is upon the police report

that the entire investigation is conducted by the

investigating agency and the onus to establish

commission of the alleged offence beyond reasonable

doubt is entirely on the prosecution. In a complaint

case, the complainant is burdened with the onus of

establishing the offence and he has to lead evidence

before the court to establish the guilt of the accused.

The rule of establishing the charges beyond reasonable

doubt is applicable to a complaint case as well.” (emphasis

supplied)

The same principle was enunciated in Madhao Vs State of

Maharashtra

17

:

“When a Magistrate receives a complaint he is not

bound to take cognizance if the facts alleged in the

complaint disclose the commission of an offence. The

Magistrate has discretion in the matter. If on a reading of

the complaint, he finds that the allegations therein disclose

a cognizable offence and the forwarding of the complaint

to the police for investigation under Section 156(3) will be

conducive to justice and save the valuable time of the

magistrate from being wasted in enquiring into a matter

which was primarily the duty of the police to investigate,

he will be justified in adopting that course as an alternative

17(2013) 5 SCC 615

33

to taking cognizance of the offence itself. As said earlier,

in the case of a complaint regarding the commission of

cognizable offence, the power under Section 156(3) can be

invoked by the Magistrate before he takes cognizance of

the offence under Section 190(1)(a). However, if he once

takes such cognizance and embarks upon the procedure

embodied in Chapter XV, he is not competent to revert

back to the pre-cognizance stage and avail of Section

156(3).”

In Anil Kumar Vs M K Aiyappa

18

, this distinction is brought out in

the following observations of the Supreme Court:

“...When a Special Judge refers a complaint for

investigation under Section 156(3) CrPC, obviously, he has

not taken cognizance of the offence and, therefore, it is a

pre-cognizance stage and cannot be equated with post-

cognizance stage. When a Special Judge takes cognizance

of the offence on a complaint presented under Section 200

CrPC and the next step to be taken is to follow up under

Section 202 CrPC. Consequently, a Special Judge referring

the case for investigation under Section 156(3) is at pre-

cognizance stage.”

Now it is in this background that it would be necessary for the Court

to consider the import of an order passed by the magistrate declining to issue

a direction under Section 156 (3) ordering an investigation as specified in

sub-section (1). When a written complaint is made before a magistrate

disclosing a cognizable offence, the magistrate may send the complaint to

the concerned police station under Section 156 (3) for investigation. If this

course of action is adopted, the police is required to investigate into the

18(2013) 10 SCC 705

34

complaint. On the completion of the investigation, a report is submitted

under Section 173 (2), upon which a magistrate may take cognizance under

Section 190 (1) (b). Alternately, when a written complaint disclosing a

cognizable offence is made before a magistrate, he may take cognizance

under Section 190 (1) (a), in which event he has to proceed in accordance

with the provisions of Chapter XV. The exercise of the power under Section

156 (3) is before the magistrate takes cognizance. Once the magistrate has

taken cognizance under Section 190, it is not open to him to switch back to

Section 156 (3) for the purposes of ordering an investigation. Section 200

requires that the magistrate taking cognizance of an offence on a complaint

shall examine upon oath the complainant and the witnesses, if any. Section

202 enables the magistrate to postpone the issuance of process against the

accused on receipt of a complaint of an offence of which he is authorised to

take cognizance, in which event he may follow one of the following courses:

(i) The magistrate may, either enquire into the case himself; or

(ii) The magistrate may direct an investigation to be made by a police

officer or by such other person as he thinks fit, for the purposes of deciding

whether or not there is sufficient ground for proceeding. However, the two

provisos to Section 202 stipulate that no direction for investigation shall be

made (i) where it appears that the offence complained of is triable

exclusively by the Court of Session; or (ii) in a complaint which has not

been made by a court, unless the complainant and the witnesses present, if

any, have been examined on oath under Section 200. The proviso to sub-

section (2) stipulates that if it appears to the magistrate that the offence

complained of is triable exclusively by the Court of Session, he shall call

35

upon the complainant to produce all the witnesses and examine them on

oath. Under Section 203, upon considering the statements on oath, if any, of

the complainant and of the witnesses and the result of the enquiry or

investigation, if any, under Section 202, if the magistrate is of the opinion

that there is no sufficient ground for proceeding, he shall dismiss the

complaint recording brief reasons.

These provisions amply demonstrate that Chapter XII on the one hand

and Chapter XV on the other, operate in two distinct spheres. The duty to

investigate into offences is of the State and it is from that perspective that

the provisions of Chapter XII including Sections 154 and 156 have been

engrafted into legislation. The rejection of an application under Section 156

(3) closes the avenue of an investigation by the police under Chapter XII.

For the informant or complainant who provides information in regard to the

commission of a cognizable offence, an investigation by the police under

Chapter XII is a valuable safeguard which sets in motion the criminal law

and ensures that the offender is traced and is made answerable to the crime

under the penal law of the land. Closing this avenue of ordering an

investigation by the police under Section 156 (1) cannot be treated as a

matter of no moment or a matter akin to a procedural direction. Depriving

the person who provides information of the safeguard of an investigation

under Chapter XII is a serious consequence particularly when we evaluate

this in the context of the alternative remedy which is available under Chapter

XV of the Code.

In Chapter XV of the Code, the complainant is subject to the burden

of producing evidence before the court. This distinction between the

36

procedure which is enunciated in Chapter XII and the provisions of Chapter

XV has been noted in several decisions of the Supreme Court from

Devarapalli Lakshminarayana Reddy (supra) to the more recent decision

in Samaj Parivartan Samudaya (supra). A magistrate who takes

cognizance under Section 200 has to examine the complainant and his

witnesses on oath. Though, under Section 202 the magistrate may postpone

the issuance of process and direct an investigation to be made by a police

officer, it is well settled that this investigation under Section 202 is for the

purpose of deciding whether or not there is sufficient ground for proceeding.

The object of an investigation under Section 202 is not to initiate a fresh

case on a police report but to assist the magistrate in completing proceedings

already instituted on a complaint before him.

Section 397

Section 397 (1) empowers the High Court and a Sessions Judge to call

for and examine the record of any proceeding before an inferior criminal

court situated within the local jurisdiction, for the purpose of satisfying itself

or himself of the correctness, legality or propriety of any finding, sentence or

order, recorded or passed, and as to the regularity of any proceedings of such

inferior court. Sub-section (2) of Section 397, however, excludes the

exercise of the revisional power in relation to an interlocutory order passed

in an appeal, inquiry, trial or other proceeding. Section 397 (2) provides as

follows:

“397. Calling for records to exercise powers of

revision. (1) … …

37

(2) 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.”

The issue which falls for determination is the meaning of the

expression “interlocutory order” in Section 397 (2). In Amar Nath Vs State

of Haryana

19

, an FIR was registered in relation to an incident in a village

where three persons had died. The appellants were named in the FIR as

having participated in the event. After investigation, the police submitted a

charge sheet against the other accused except the appellants in relation to

whom the police opined that no case was made out. A final report under

Section 173 was submitted, which came to be accepted by the judicial

magistrate. The revision petition filed by the complainant was dismissed by

the Additional Sessions Judge, upon which a regular complaint was filed

before the judicial magistrate against all the accused, including the

appellants. The magistrate dismissed the complaint on being satisfied that no

case was made out against the appellants, whereupon the complainant took

the matter in revision before the Sessions Judge. The Sessions Judge allowed

the revision and remanded the case to the judicial magistrate for further

enquiry, upon which the latter issued summons to the appellants

straightaway. This order was challenged unsuccessfully by the appellants

before the High Court, inter-alia, under Section 397: the High Court

dismissed the petition on the ground that the order of the judicial magistrate

summoning the appellants was interlocutory in nature and hence the revision

was barred. The Supreme Court observed that the bar on a revision against

19AIR 1977 SC 2185

38

interlocutory orders was introduced because High Courts were flooded with

revisions of all kinds against interlocutory orders resulting in a delay in the

disposal of cases. Explaining the ambit of the expression “interlocutory

order”, the Supreme Court observed as follows:

“The main question which falls for determination in

this appeal is as to what is the connotation of the term

"interlocutory order" as appearing in sub-section (2) of

Section 397 which bars any revision of such an order by

the High Court. The term "interlocutory order" is a term of

well-known legal significance and does not present any

serious diffident. It has been used in various statutes

including the Code of Civil Procedure, Letters Patent of

the High Courts and other like statutes. In Webster's New

World Dictionary "interlocutory" has been defined as an

order other than final decision. Decided cases have laid

down that interlocutory orders to be appealable must be

those which decide the rights and liabilities of the parties

concerning a particular aspect. It seems to us that the term

"interlocutory order" in Section 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

right 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 Section 397 of the 1973 Code. Thus, for

instance, orders summoning witnesses, adjourning cases,

39

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

orders so as to be outside the purview of the revisional

jurisdiction of the High Court.” (emphasis supplied)

The test to be applied is whether an order is purely interim or

temporary in nature which does not decide or touch upon important rights or

liabilities of parties. In distinction, an order which substantially affects the

rights of the accused or decides certain rights of the parties is not an

interlocutory order. An order which deals with matters of moment and

which affects or adjudicates upon rights or a particular aspect of the trial is

not an interlocutory order so as to be outside the pale of revision.

Interlocutory orders are purely procedural orders which do not affect rights

and liabilities of parties and are steps towards the process of final

adjudication. An interlocutory order merely regulates the procedure and

does not affect rights or liabilities. Bearing in mind these principles, the

Supreme Court noted that in that case, the appellants had been released by

the judicial magistrate upon the submission of a final report by the police

and a revision to the Additional Sessions Judge had failed. The appellants

were held to have acquired a valuable right of not being put on trial unless a

proper order was made against them. When a complaint was thereafter filed

which again was dismissed by the judicial magistrate, the Sessions Judge

40

remanded the proceedings. In pursuance of the remand, when the judicial

magistrate summoned the appellants, the question of the appellants being

put to trial arose for the first time. This was held to be a valuable right which

the appellants possessed and which was being denied to them by the order of

the judicial magistrate. The order of the judicial magistrate was, in the

circumstances, a matter of moment in the view of the Supreme Court and a

valuable right was regarded as having been taken away by the magistrate in

passing an order, prima facie, in a mechanical fashion without application of

mind. Hence, the revision was held to be maintainable.

The submission which has been urged on behalf of the petitioners,

however, is that while the police ought to register an FIR whenever facts

brought to their notice show that a cognizable offence has been made out, a

remedy is provided by the Code in the event that the police fail to do so. In

such an event, it has been urged that the modalities to be adopted are those

which are specified in Section 190 read with Section 200. The submission is

that since an alternate remedy is available, the rejection of an application

under Section 156 (3) does not result in the doors being shut to the

complainant who can avail of the remedy provided in Chapter XV by

submitting a complaint to the magistrate.

Since this submission is based on the judgment of the Supreme Court

in Aleque Padamsee (supra), the judgment in that case would have to be

analyzed. In Aleque Padamsee, a petition was filed under Article 32 of the

Constitution before the Supreme Court because of the inaction of police

officials in failing to register an FIR and in according sanction in terms of

Section 196 IPC. It was alleged that the fifth and sixth respondents made

41

speeches which were likely to disturb the communal harmony and to create

hatred against persons belonging to minority communities. The police

authorities in Maharashtra found that since speeches were delivered outside

the State, action could be taken by the authorities in that latter State. The

report which was lodged was, accordingly, forwarded to officials in the

other State. The submission was that though the FIR ex facie disclosed the

commission of a cognizable offence, the police were not justified in

registering it. It was in this background that the Supreme Court held as

follows:

“(1) If any person is aggrieved by the inaction of the

police officials in registering the FIR, the modalities

contained in Section 190 read with Section 200 of the

Code are to be adopted and observed.

(2)It is open to any person aggrieved by the inaction of

the police officials to adopt the remedy in terms of the

aforesaid provisions.”

These observations would not determine the issue as to whether a

revision under Section 397 is barred where an application made to the

magistrate under Section 156 (3) is rejected. That was not the matter in issue

before the Supreme Court. Whether an order rejecting an application under

Section 156 (3) would constitute an interlocutory order did not fall for

determination and hence the judgment in Aleque Padamsee does not deal

with this aspect. On the contrary, it is clear that for a revision to be barred

under Section 397 (2), an order must fulfill the description of being an

interlocutory order. An interlocutory order is in the nature of a procedural

order which is a step taken towards final adjudication of the case. An

42

interlocutory order is an order which does not affect or adjudicate upon the

substantial rights of parties.

An order which determines matters of moment or which affects

valuable rights is not an interlocutory order. An order passed by the

magistrate declining to entertain an application under Section 156 (3) is a

matter of moment for the complainant or the informant because such an

order has the effect of declining to issue a direction to the police to register

an FIR and investigate the case. That avenue of a police investigation is

foreclosed by the passing of an order under Section 156 (3). The remedy of a

complainant under Section 200 stands in a distinct and independent sphere

and is subject to the discharge of statutory obligations which a complainant,

who brings focus on the commission of a cognizable offence, may not be

able to bear. In the referral order of 13 December 2013, the learned Single

Judge has emphasized that it is a primary constitutional mandate of the

State, under the Directive Principles of State Policy, to ensure that

opportunities for securing justice are not denied to a citizen by reason of

economic and other disabilities. The learned Single Judge has cited two

telling illustrations, which we may extract hereafter only to emphasize the

serious consequences that are liable to emerge if the remedy of a revision

under Section 397 (2) is shut out to a complainant against an order of the

magistrate declining to order the registration of a case or registration of an

FIR and declining to direct an investigation under Section 156 (3):

“To elucidate the point: where a son of a maid

servant, who had gone to demand his wages from a doctor

in a nursing home on the occasion of the doctor's

43

daughter's marriage is found drowned in a pond and the

body discovered had blood oozing from the mouth and

nostrils and the Magistrate on the application under

Section 156(3) CrPC refuses to order registration and

investigation of the case, can the maid servant be expected

to get justice by lodging a private complaint and collecting

evidence against the influential doctor. Similarly, where in

an open assault, the husband of the complainant is felled

and killed at the spot, the victim being the near relation of

the accused, say brother of the accused, the widow having

been first withheld from going to police station to lodge a

report and when after some time she reaches the police

station, the police turning her away and not registering a

case and when the woman resorts to her parental house

and then moves an application along with post mortem

report under Section 156 (3) CrPC and the Magistrate

treats the same as complaint, can the lady be expected to

collect evidence from a village where she is not residing,

the persons who are powerful and resourceful (both the

illustrations cited happen to be the real cases which came

to my notice while working as District and Sessions

Judge).”

To expect a complainant who suffers from grave social disabilities

occasioned by the widespread societal discrimination on grounds of gender

and caste, which prevail in our society more than six decades after

independence, to effectively prosecute a complaint before the magistrate

under Chapter XV of the Code, would be to shut our eyes to social reality.

The well settled distinction between a police investigation falling within the

ambit and purview of Chapter XII and an enquiry or investigation ordered

by the magistrate under Section 202 have already been noticed earlier

44

following the decision of the Supreme Court in Devarapalli

Lakshminarayana Reddy (supra). The power of the magistrate under

Section 202 to postpone the issuance of process and to direct an

investigation to be made by a police officer for the purpose of deciding

whether or not there is sufficient ground for proceeding, is distinct from an

order under Section 156 (3). This distinction is part of the well settled

principle of our law. Hence, in our view, where an order is passed by the

magistrate declining to order an investigation under Section 156 (3), such an

order affects the valuable rights of the complainant and is a matter of

moment. Access to the remedy of a revision under Section 397 (1) is not

barred since such an order is not an interlocutory order under sub-section

(2). Nor can access to the statutory remedy of a revision under Section 397

(1) be defeated on the ground that the complainant may avail of the

procedure prescribed in Chapter XV of the Code.

The decision of the Full Bench in Father Thomas arose from a

judgment of the learned Single Judge which doubted the correctness of an

earlier decision in Ajai Malviya (supra). In Ajai Malviya, it was held that

an order under Section 156 (3) is a judicial order and hence an FIR

registered on its basis could not be challenged in a writ petition. While

dissenting from that view, the learned Single Judge had observed that

though the order under Section 156 (3) is a judicial order, nonetheless it is

an interlocutory order which could not be challenged by a prospective

accused who had no locus standi at the stage of investigation. The ambit of

the reference in Father Thomas was on whether a direction under Section

156 (3) ordering an investigation is interlocutory in nature and whether a

45

prospective accused has the locus standi to challenge that order under

Section 397. Undoubtedly, three questions were formulated for the decision

of the Full Bench. The first question was whether an order of the magistrate

under Section 156 (3) 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. The second question was whether an

order under Section 156 (3) is an interlocutory order against which the

remedy of a revision is barred under Section 397 (2). The second question

which was formulated in Father Thomas was consequential upon the first.

The answers to both the questions must, therefore, be construed from the

perspective of the controversy which was before the Court. No judgment can

be read in the abstract, isolated from the facts which constitute the basis or

foundation for the invocation of a judicial remedy. The ruling of the Full

Bench in Father Thomas that an order under Section 156 (3) is

interlocutory is, therefore, to be construed as laying down the principle that

a prospective accused against whom neither cognizance has been taken nor

process has been issued, has no right of revision against an order directing

the registration of an FIR and an investigation. The issue which has fallen

for determination in the present proceedings was not before the Full Bench

in Father Thomas. The judgment in Father Thomas does not decide that

question. The issue has not been decided expressly or sub silentio.

Right to be heard

Now it is in this background, that we deal with the next issue in the

present reference which is, whether in a revision under Section 397 filed

against the rejection of an application under Section 156 (3) for the

46

registration of a case and for investigation, the prospective accused has a

right to be heard. While considering this question, it would be appropriate to

refer to some of the leading decisions of the Supreme Court which have a

bearing on the issue. In P Sundarrajan Vs R Vidhya Sekar

20

, a Bench of

two learned Judges considered a situation where a complaint under Section

420 IPC had been dismissed by the judicial magistrate. Against the dismissal

of the complaint, the complainant preferred a revision before the High

Court. Holding that no notice to the suspects for the disposal of the revision

was necessary, the High Court set aside the order of the magistrate and

directed him to proceed afresh in accordance with law. The Supreme Court

granted leave in a Special Leave Petition under Article 136 and while setting

aside the order of the High Court, remanded the proceedings with a direction

to issue proper notice to the persons accused of the crime in the complaint

and to proceed after affording them a reasonable opportunity of being heard.

The Supreme Court held that the order of the High Court was “ex facie

unsustainable in law by not giving an opportunity to the appellant herein to

defend his case” and that the learned Judge “violated all principles of natural

justice as also the requirement of law of hearing a party before passing an

adverse order”

21

.

In Raghu Raj Singh Rousha (supra), the first respondent filed a

complaint before the Additional Chief Metropolitan Magistrate under

Section 200 in respect of offences punishable under Sections 323, 382, 420,

465, 468, 471, 120-B, 506 and 34 IPC together with an application under

Section 156(3). The Metropolitan Magistrate declined to direct an

20(2004) 13 SCC 472

21At para 5, page 472-473

47

investigation by the Station House Officer under Section 156 (3) and

dismissed the application. However, the Magistrate held that the complaint

can be conveniently dealt with under Section 200 and, if necessary, the

assistance of the police could be taken under Section 202. The complainant

was called upon to lead pre-summoning evidence and to furnish the list of

witnesses. The first respondent filed a revision impleading only the State as

a party. The High Court, on hearing counsel for the parties, noted that it was

agreed that the order of the Metropolitan Magistrate be set aside with a

direction to examine the matter afresh after calling for a report from the

police. The police was directed to hold a preliminary enquiry on the basis of

the complaint and to submit a report to the magistrate. The Supreme Court

held as follows:

“22. Here, however, the learned Magistrate had

taken cognizance. He had applied his mind. He refused to

exercise his jurisdiction under Section 156(3) of the Code.

He arrived at a conclusion that the dispute is a private

dispute in relation to an immovable property and, thus,

police investigation is not necessary. It was only with that

intent in view, he directed examination of the complainant

and his witnesses so as to initiate and complete the

procedure laid down under Chapter XV of the Code.”

The judgment of the High Court was set aside with a direction to implead

the appellant as a party in the criminal revision and to hear the proceedings

afresh. The decision in Raghu Raj Singh Rousha (supra) dealt with a

situation where, as the Supreme Court noted, the magistrate had taken

48

cognizance, and had applied his mind while, at the same time, refusing to

exercise his jurisdiction under Section 156 (3).

In a subsequent decision in A N Santhanam Vs K Elangovan

22

, a

Bench of two learned Judges of the Supreme Court considered whether the

High Court had committed an error in disposing of a criminal revision

petition filed by the complainant without notice to the accused. Relying

upon the provisions of Section 401 (2) of the Code, the Supreme Court

observed that the High Court in the exercise of its revisional power cannot

pass any order which may cause prejudice to the accused or to other persons

unless an opportunity of being heard is granted. While setting aside the

decision of the High Court, the Supreme Court restored the criminal revision

for disposal afresh after notice to the appellant. In that context, the Supreme

Court observed as follows:

“In the instant case it cannot be said that the rights

of the appellant have not been affected by the order of

revision. The complaint filed by the respondent which was

rejected for whatsoever reasons has been resurrected with

a direction to the Magistrate to proceed with the complaint.

Undoubtedly, whether the appellant herein was an accused

or not but his right has been affected and the impugned

order has resulted in causing prejudice to him.”

The earlier decisions and the provisions of Section 401 (2) of the

Code came up for consideration before a Bench of three learned Judges of

the Supreme Court in Manharibhai Muljibhai Kakadia Vs Shaileshbhai

Mohanbhai Patel

23

. Before we analyze the decision, it would be necessary

22(2012) 12 SCC 321

23(2012) 10 SCC 517

49

to advert to the provisions of sub-sections (1) and (2) of Section 401 of the

Code:

“401. High Court's powers of revisions. (1) In the

case of any proceeding the record of which has been called

for by itself or which otherwise comes to its knowledge,

the High Court may, in its discretion, exercise any of the

powers conferred on a Court of Appeal by Sections 386,

389, 390 and 391 or on a Court of Session by Section 307

and, when the Judges composing the Court of revision are

equally divided in opinion, the case shall be disposed of in

the manner provided by Section 392.

(2) No order under this section shall be made to the

prejudice of the accused or other person unless he has had

an opportunity of being heard either personally or by

pleader in his own defence.”

Sub-section (1) of Section 401 deals with the power of the High Court

in revision and stipulates that where the record of a proceeding has been

called for by the High Court or comes to its knowledge, it may, in its

discretion, exercise any of the powers, inter-alia, conferred on a Court of

Session by Section 307 or on a Court of Appeal by Sections 386, 389, 390

and 391. Sub-section (2) of Section 401 stipulates that no order under the

section shall be made to the prejudice of the accused “or other person”

unless an opportunity of being heard has been furnished.

In Manharibhai Muljibhai Kakadia Vs Shaileshbhai Mohanbhai

Patel (supra), the first respondent filed a criminal complaint in the court of

the Chief Judicial Magistrate against the appellants alleging that they had

entered into a conspiracy and had created forged documents in the name of

50

the complainant and his relatives and had used them as genuine documents

before the District Registrar of Cooperative societies and by making false

representations, thereby causing a financial loss. The appellants were alleged

to have committed offences punishable under Sections 420, 467, 468, 471

and 120-B IPC. The Chief Judicial Magistrate, in exercise of the power

under Section 202 of the Code, directed an enquiry to be made by the police

Inspector. The Investigating Officer, upon investigation, submitted a C

Summary Report stating that the dispute was of a civil nature and no offence

was made out. The Chief Judicial Magistrate accepted the report of the

Investigating Officer. That order was challenged by the complainant in a

criminal revision under Section 397. The appellants made an application for

joining them as respondents and to be heard but the learned Single Judge of

the High Court dismissed the application. The Supreme Court granted leave

in petitions under Article 136 of the Constitution and disposed of the appeals

by its decision. The Supreme Court observed that under Section 202, the

magistrate may himself hold an enquiry or direct an investigation by a police

officer. The dismissal of the complaint under Section 203 is at the stage of

pre-issuance of process. The Code does not permit an accused person to

intervene at the stage of inquiry by the Magistrate under Section 202. The

Supreme Court formulated the issue as whether, when a complaint has been

dismissed by the magistrate under Section 203 at the post-cognizance stage

and pre-issuance of process, on a challenge to the legality of the order of

dismissal of a complaint being laid by the complainant in a revision before

the High Court, persons who are arraigned as accused had a right to be

heard. The Supreme Court observed as follows:

51

“The legal position is fairly well-settled that in the

proceedings under Section 202 of the Code the

accused/suspect is not entitled to be heard on the question

whether the process should be issued against him or not.

As a matter of law, upto the stage of issuance of process,

the accused cannot claim any right of hearing. Section 202

contemplates postponement of issue of process where the

Magistrate is of an opinion that further inquiry into the

complaint either by himself is required and he proceeds

with the further inquiry or directs an investigation to be

made by a Police Officer or by such other person as he

thinks fit for the purpose of deciding whether or not there

is sufficient ground for proceeding. If the Magistrate finds

that there is no sufficient ground for proceeding with the

complaint and dismisses the complaint under Section 203

of the Code, the question is whether a person accused of

crime in the complaint can claim right of hearing in a

revision application preferred by the complainant against

the order of the dismissal of the complaint. Parliament

being alive to the legal position that the accused/suspects

are not entitled to be heard at any stage of the proceedings

until issuance of process under Section 204, yet in Section

401(2) of the Code provided that no order in exercise of

the power of the revision shall be made by the Sessions

Judge or the High Court, as the case may be, to the

prejudice of the accused or the other person unless he had

an opportunity of being heard either personally or by

pleader in his own defence.”

The Supreme Court noted, in the course of the decision, that three

expressions which have been used in Section 401 (2) are significant, namely

(i) “prejudice”; (ii) “other person”; and (iii) “in his own defence”. It was

52

held that the expression “other person” in the context of Section 401 (2)

means a person other than the accused and includes suspects or persons

alleged in the complaint to have been involved in the offence, although they

may not be termed as accused at a stage before the issuance of process. The

expression “in his own defence” was held to comprehend for the purposes of

Section 401 (2), in defence of the order which is under challenge in the

revision before the Sessions Judge or the High Court. The principle of law

which has been formulated by the Supreme Court is as follows:

“In a case where the complaint has been dismissed

by the Magistrate under Section 203 of the Code either at

the stage of Section 200 itself or on completion of inquiry

by the Magistrate under Section 202 or on receipt of the

report from the police or from any person to whom the

direction was issued by the Magistrate to investigate into

the allegations in the complaint, the effect of such

dismissal is termination of complaint proceedings. On a

plain reading of sub-section (2) of Section 401, it cannot

be said that the person against whom the allegations of

having committed the offence have been made in the

complaint and the complaint has been dismissed by the

Magistrate under Section 203, has no right to be heard

because no process has been issued. The dismissal of

complaint by the Magistrate under Section 203 –

although it is at preliminary stage – nevertheless results

in termination of proceedings in a complaint against

the persons who are alleged to have committed crime.

Once a challenge is laid to such order at the instance of

the complainant in a revision petition before the High

Court or the Sessions Judge, by virtue of Section 401(2)

of the Code, the suspects get the right of hearing before

53

revisional court although such order was passed

without their participation. The right given to

“accused” or “the other person” under Section 401(2)

of being heard before the revisional court to defend an

order which operates in his favour should not be

confused with the proceedings before a Magistrate

under Sections 200, 202, 203 and 204. In the revision

petition before the High Court or the Sessions Judge at

the instance of complainant challenging the order of

dismissal of complaint, one of the things that could

happen is reversal of the order of the Magistrate and

revival of the complaint. It is in this view of the matter

that the accused or other person cannot be deprived of

hearing on the face of the express provision contained

in Section 401(2) of the Code. The stage is not

important whether it is pre-process stage or post

process stage.” (emphasis supplied)

Expressing its agreement with the principles which were formulated in the

earlier decisions in P Sundarrajan, Raghu Raj Singh Rousha, and A N

Santhanam, the Supreme Court held thus:

“... We hold, as it must be, that in a revision petition

preferred by the complainant before the High Court or the

Sessions Judge challenging an order of the Magistrate

dismissing the complaint under Section 203 of the Code at

the stage under Section 200 or after following the process

contemplated under Section 202 of the Code, the accused

or a person who is suspected to have committed the crime

is entitled to hearing by the revisional court. In other

words, where the complaint has been dismissed by the

Magistrate under Section 203 of the Code, upon challenge

to the legality of the said order being laid by the

54

complainant in a revision petition before the High Court or

the Sessions Judge, the persons who are arraigned as

accused in the complaint have a right to be heard in such

revision petition. This is a plain requirement of Section

401(2) of the Code. If the revisional court overturns the

order of the Magistrate dismissing the complaint and the

complaint is restored to the file of the Magistrate and it is

sent back for fresh consideration, the persons who are

alleged in the complaint to have committed the crime

have, however, no right to participate in the proceedings

nor are they entitled to any hearing of any sort whatsoever

by the Magistrate until the consideration of the matter by

the Magistrate for issuance of process. We answer the

question accordingly. The judgments of the High Courts to

the contrary are overruled.”

The decision of the Supreme Court in Manharibhai Muljibhai

Kakadia holds that where a complaint is dismissed under Section 203, the

accused or a person who is suspected to have committed the crime is entitled

to a hearing before the revisional court. This has been held to be a

consequence of the requirement in Section 401 (2) that no order under sub-

section (1) shall be made to the prejudice of the accused or other persons

unless he has had an opportunity of being heard in his own defence. The

stage, whether it be pre-process or post-process has been held not to matter.

The issue has been looked at from two perspectives. Firstly, the dismissal of

a complaint by a magistrate under Section 203 results in a termination of the

proceedings in a complaint against a person who is alleged to have

committed the crime. Once a challenge is made to such an order at the

instance of the complainant, the suspects get a right of hearing before the

55

revisional court, although such an order was passed in the first instance by

the magistrate without their participation. The right to be heard is one which

emanates from Section 401 (2). Secondly, if the revisional court overturns

the order of the magistrate dismissing the complaint and the complaint is

restored to the file of the magistrate for fresh consideration, the persons who

are alleged in the complaint to have committed the crime have no right to

participate in the proceedings before the magistrate until the consideration of

the matter by the magistrate for issuance of process. The fact that the

persons who are suspected of having committed the crime have not been

heard when the original order of dismissal has been passed under Section

203 and will not be heard upon the restoration of the proceedings following

the allowing of the revision, has been held not to affect their right to be

heard in the revision under Section 397 (2).

As we have noted earlier, once an application has been filed before

the magistrate upon the refusal of the police to investigate under Section 156

(1), the Supreme Court has observed that the magistrate has an option of

either proceeding under Section 156 (3) or under Section 200. If the

magistrate were to proceed under Section 200 and the complaint is

dismissed under Section 203, whether pre- or post-process, the persons who

are suspected of having committed the crime have been held to be entitled to

be heard in a revision by the complainant under Section 397 against the

order of rejection. That being the position, there is no reason or justification

to exclude an opportunity of being heard to the persons suspected of having

committed the crime when a revision is filed under Section 397 against the

rejection of an application under Section 156 (3) for the registration of a

56

case involving a cognizable offence and for investigation by the police. The

provisions of Section 401 (2) have been held to require a hearing to a person

suspected of having committed a crime when a criminal revision is laid

against an order of dismissal of the complaint under Section 203,

irrespective of the stage at which the complaint had been dismissed. Equally,

there would be no justification to exclude the right of a hearing for, to use

the language of Section 401 (2), a hearing has to be afforded to the accused

or other person and no order can be made to his prejudice unless he has an

opportunity of being heard in his own defence.

The decision in Manharibhai Muljibhai Kakadia has been followed

in a subsequent judgment of the Supreme Court in Mohit alias Sonu Vs

State of Uttar Pradesh

24

. In that case, an order passed by the Additional

Sessions Judge rejecting an application moved by the complainant under

Section 319 of the Code was set aside by the High Court and the trial Court

was directed to examine the accused–appellants. The accused were named in

an FIR of having committed offences under Sections 147, 323, 504, 506 and

304 IPC. The Investigating Officer submitted a charge sheet against five

accused leaving out the names of two accused who were the appellants

before the Supreme Court. After the committal of the case for trial, the

complainant in his examination-in-chief specifically stated the role of the

appellants and moved an application under Section 319 for summoning

them. The trial Court disposed of the application on the ground that the

cross-examination had been not completed. This Court found no error in the

order passed by the trial Court which had simply postponed the issue

24(2013) 7 SCC 789

57

pending the cross-examination of the witnesses. A second application under

Section 319 was thereafter rejected by the trial court, against which an

application under Section 482 was allowed by this Court. This Court held

that the trial Court was in error in rejecting the application for summoning

the appellants and directed the trial Court to summon them under Section

319. The Supreme Court observed as follows:

“25. In the light of the ratio laid down by this Court

referred to herein above, we are of the considered opinion

that the order passed by the trial court refusing to issue

summons on the application filed by the complainant

under Section 319 of CrPC cannot be held to be an

interlocutory order within the meaning of sub-section (2)

of Section 397 of CrPC. Admittedly, in the instant case,

before the trial court the complainant's application under

Section 319 of CrPC was rejected for the second time

holding that there was no sufficient evidence against the

appellants to proceed against them by issuing summons.

The said order passed by the trial court decides the rights

and liabilities of the appellants in respect of their

involvement in the case. As held by this Court in Amar

Nath's case, an 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 as

contemplated under Section 397(2) of CrPC.

26.In the instant case as noticed above, when the

complainant's application under Section 319 of CrPC was

rejected for the second time, he moved the High Court

challenging the said order under Section 482 of CrPC on

the ground that the Sessions Court had not correctly

appreciated the facts of the case and the evidence brought

58

on record. The complainant wanted the High Court to set

aside the order after holding that the evidence brought on

record is sufficient for coming to the conclusion that the

appellants were also involved in the commission of the

offence.

27. In our considered opinion, the complainant

ought to have challenged the order before the High Court

in revision under Section 397 of CrPC and not by invoking

inherent jurisdiction of the High Court under Section 482

of CrPC Maybe, in order to circumvent the provisions

contained in sub-section (2) of Section 397 or Section 401,

the complainant moved the High Court under Section 482

CrPC. In the event a criminal revision had been filed

against the order of the Sessions Judge passed under

Section 319 of CrPC, the High Court before passing the

order would have given notice and opportunity of hearing

to the appellants.”

The conclusion which was arrived at was as follows:

“34. Indisputably, a valuable right accrued to the

appellants by reason of the order passed by the Sessions

Court refusing to issue summons on the ground that no

prima facie case has been made out on the basis of

evidence brought on record. As discussed herein above,

when the Sessions Court order has been challenged, then it

was incumbent upon the revisional court to give notice

and opportunity of hearing as contemplated under sub-

section (2) of Section 401 of CrPC. In our considered

opinion, there is no reason why the same principle should

not be applied in a case where such orders are challenged

in the High Court under Section 482 of CrPC.”

59

The appeal was, accordingly, allowed and the proceedings were remitted

back to the High Court for a decision afresh after furnishing an opportunity

of being heard to the appellants. The principle underlying Section 401 (2)

has been extended by the Supreme Court also to a proceeding under Section

482.

The test as to whether a person is entitled to an opportunity of being

heard in a challenge to an order passed in an original proceeding by another

is not dependant necessarily on whether such a person had a right to be

heard in the original proceeding. A person who is entitled to be heard in an

original proceeding may legitimately assert a right to be heard when a

substantive right created by an order passed in that proceeding is sought to

be assailed before a higher forum at the behest of another person. But a right

to be heard in revision is not excluded because a person who claims such a

right was not entitled to be heard before the original order, which is assailed,

was passed in the first instance or merely because a right of a hearing will

not be available in the original proceedings on remand. The entitlement of a

hearing at a particular stage has to be assessed independently, by

considering the consequences of the proceeding in which a hearing is

sought. Where a substantial right will be affected, a prejudice is likely to

result or a result which has enured to the benefit of a person is sought to be

negated, a hearing can legitimately be claimed when the order is assailed in

a higher forum. Natural justice in our jurisprudence is not merely a matter of

statutory entitlement but is an emanation or recognition of the constitutional

right to fair procedure, fair treatment and objective decision making. Hence,

a prospective accused is entitled to be heard in revision under Section 397

60

when an order rejecting an application under Section 156 (3) is assailed.

For, such a person would have a legitimate entitlement to defend the order

as having been correctly made. The fact that in the event of a remand by the

revisional court to the Magistrate, for fresh consideration of an application

under Section 156 (3), such a person has no right of a hearing does not

preclude a right of a hearing in revision when the original order rejecting an

application under Section 156 (3) is assailed.

Before concluding our discussion on this aspect of the matter, it

would be appropriate to refer to the decision of the Supreme Court in Divine

Retreat Centre Vs State of Kerala

25

. The Supreme Court observed as

follows:

“49. It is evident from Sections 154, 156 and 157 of

the Code that even a police officer can act on the basis of

information received or otherwise and proceed to

investigate provided he has reason to suspect the

commission of a cognizable offence which he is

empowered to investigate under Section 156 CrPC. If the

essential requirements of the penal provisions are not

prima facie disclosed by a First Information Report and

the police officer has no reason to suspect the commission

of a cognizable offence, no investigation can be

undertaken by him based on the information received or

otherwise.

51. ...It was, however, submitted that accused gets a

right of hearing only after submission of the charge-sheet,

before a charge is framed or the accused is discharged

vide Sections 227 & 228 and 239 and 240 CrPC. The

appellant is not an accused and, therefore, it was not

25(2008) 3 SCC 542

61

entitled for any notice from the High Court before passing

of the impugned order. We are concerned with the

question as to whether the High Court could have passed a

judicial order directing investigation against the appellant

and its activities without providing an opportunity of

being heard to it. The case on hand is a case where the

criminal law is directed to be set in motion on the basis of

the allegations made in anonymous petition filed in the

High Court. No judicial order can ever be passed by any

court without providing a reasonable opportunity of being

heard to the person likely to be affected by such order and

particularly when such order results in drastic

consequences of affecting ones own reputation...”

In view of the discussion above and for the reasons which we have

furnished, we have come to the following conclusion:

(i)Before the Full Bench of this Court in Father

Thomas, the controversy was whether a direction to the

police to register a First Information Report in regard to a

case involving a cognizable offence and for investigation

is open to revision at the instance of a person suspected of

having committed a crime against whom neither

cognizance has been taken nor any process issued. Such an

order was held to be interlocutory in nature and, therefore,

to attract the bar under sub-section (2) of Section 397. The

decision in Father Thomas does not decide the issue as to

whether the rejection of an application under Section 156

(3) would be amenable to a revision under Section 397 by

62

the complainant or the informant whose application has

been rejected;

(ii)An order of the magistrate rejecting an application

under Section 156 (3) of the Code for the registration of a

case by the police and for investigation is not an

interlocutory order. Such an order is amenable to the

remedy of a criminal revision under Section 397; and

(iii)In proceedings in revision under Section 397, the

prospective accused or, as the case may be, the person

who is suspected of having committed the crime is entitled

to an opportunity of being heard before a decision is taken

in the criminal revision.

The reference to the Full Bench is, accordingly, disposed of. The

proceedings shall now be placed before the appropriate Bench in accordance

with the roster of work for disposal in light of the principles laid down in

this decision.

September 23, 2014

AHA

(Dr. D.Y. Chandrachud, C.J.)

(Dr. D.K. Arora, J.)

(D.K. Upadhyaya, J.)