Father Thomas vs State of U.P. and Another

Amar Saran, J.—We have heard Sri. G.S. Chaturvedi Senior Advocate assisted by Sri Samit Gopal, Sri D.S. Mishra and Sri Dileep Gupta Advocates for the private parties and Sri Patanjali Mishra, A.G.A., Sri Neeraj Verma, A.G.A., and Sri D.R. Chaudhari, Government Advocate for the State of U.P. Written arguments and case law were filed by the State. However inspire of time being allowed, no written arguments or case law were filed by the private counsel, except Sri G.S. Chaturvedi, who had filed some case law in 2008 in the leading petition, Crl. Revn. No. 1640 of 2000 on behalf of Father Thomas, and has also supplied us with some additional photocopies of relevant case law.

This Full Bench was constituted after an order dated 28.9.01 was passed by the Single Judge (Hon. J.C. Gupta, J), who was examining the power of the Court in a Criminal Revision to question an order of the Magistrate issuing a direction u/s 156(3) of the Code of Criminal Procedure (hereafter ''Code of Criminal Procedure'' or ''the Code'') to the police to register an FIR and to investigate the same.

The Single Judge was of the view that as the accused has no locus stand before an order is passed summoning the accused, and also as the order directing investigation is purely interlocutory in nature, in view of the statutory bar contained in Section 397(2) of the Code, the said order was not revisable.

However, as it had been held in Ajay Malviya v. State of U.P. and Ors. (XLI)2000 ACC 435, that as an order u/s 156(3) Code of Criminal Procedure is a judicial order, hence any FIR registered on its basis could not be challenged by means of a writ petition. Dissenting from this view the Single Judge without disputing the position that an order u/s 156(3) of the Code was a judicial order, observed that the said order was an interlocutory order, which could not be challenged by a prospective accused who had no locus standi at the stage of investigation, hence a Criminal Revision was not maintainable for challenging the said order. In this background the Single Judge raised doubts about the correctness of the decision of the division bench in Ajay Malviya which based its conclusions on the position that as an order u/s 156(3) was a judicial order, hence it was ipso facto revisable, and therefore no FIR pursuant to such an order, could be challenged by means of a criminal writ. The learned single judge thereupon vacated all the stay orders granted in the connected Criminal Revisions, which are before us, and formulated the following three questions for consideration, by a larger bench, which are now being examined by the present Full Bench.

A. Whether the order of the Magistrate made in exercise of powers u/s 156(3) Code of Criminal Procedure 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 u/s 156(3) Code of Criminal Procedure is an interlocutory order and remedy of revision against such order is barred under Sub-section (2) of Section 397 of the Code of Criminal Procedure, 1973?

C. Whether the view expressed by a Division Bench of this Court in the case of Ajay Malviya v. State of U.P. and Ors.(XLI) 2000 ACC 435, that as an order made u/s 156(3) of the Code of Criminal Procedure is amenable to revision, no writ petition for quashing an F.I.R. registered on the basis of the order will be maintainable, is correct?

Opinion of the bench on the three issues:

A. Locus standi of a prospective accused against whom neither cognizance has been taken nor process issued, to challenge an order u/s 156(3) Code of Criminal Procedure in a Criminal Revision.

Before examining any of the questions posed in this case, it would be necessary to reproduce the words of Section 156 which falls in Chapter XII of the Code.

156. Police officer''s powers to investigate cognizable cases-

(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this Section to investigate.

(3) Any Magistrate empowered u/s 190 may order such an investigation as above mentioned.

As pointed out in Suresh Chand Jain Vs. State of Madhya Pradesh and Another, that there is a difference in the position of a prospective accused against whom an order is made u/s 156(3) of the Code before cognizance is taken by the Magistrate, and an accused against whom investigation has been directed u/s 202(1) of the Code. Although the nature of both the investigations is the same, but the former investigation is carried out by the police, essentially under Chapter XII of the Code which deals with: "Information to the Police and Their Powers to Investigate." The police officer-in-charge of the police station has the same powers for carrying out an investigation u/s 156(1), without orders of the Magistrate as the Magistrate can direct u/s 156(3) of the Code. Section 154(1) of the Code prescribes the steps to be taken on receipt of a report of a cognizable offence by such a police officer. 154(3) gives powers to the Superintendent to issue appropriate directions requiring a station officer to conduct investigation into a cognizable offence. This power is parallel to the power of the Magistrate to issue a similar direction to the Station officer u/s 156(3) of the Code. The investigation culminates with the submission of the report by the police u/s 173 of the Code The post-cognizance investigation directed by the Magistrate u/s 202(1) although it is of a limited nature at the stage of inquiry and is carried out mainly for helping the Magistrate decide whether or not there is sufficient ground for him to proceed further, but it is an investigation which is carried out on directions of the police after cognizance has been taken by the Magistrate on a complaint under Sections 190(1)(a) and after examination of the complainant u/s 200 of the Code.

For showing that a prospective accused has no right of being heard before process is issued or cognizance is taken, and therefore he cannot challenge the order directing investigation u/s 156(3) Code of Criminal Procedure in a criminal revision, the learned Single Judge has placed reliance on the following decisions of the Apex Court which speak of the absence of any right of an accused to intervene even in an inquiry u/s 202 of the Code, which is conducted after cognizance has been taken, u/s 190(1)(a) and 200 of the Code:

In Smt. Nagawwa v. V.S. Konjalgi (XIII) 1976 ACC 225 Vadilal Panchal Vs. Dattatraya Dulaji Ghadigaonker and Another, Chandra Deo Singh v. Prakash Chandra Bose (1963) 1 SCR 202; Mansukh Lai V. Chauhan v. State of Gujarat (XXXV) 1997 ACC 501 (SC) and Central Bureau of Investigation Vs. V.K. Sehgal and another, it has been held that the scope of enquiry u/s 202 of the Code is extremely limited, and it is only meant for adjudging whether prima facie on the basis of the intrinsic reliability of the material placed by the complainant, a case for issuing process against the accused was made out. The accused at this stage has a right only to remain personally present or through his agent and to be informed about what is going on, but he has no right to participate in the proceedings. At this stage the defence of the accused is not to be considered. Sufficiency of the material for conviction is beyond the scope of an inquiry u/s 202 of the Code as the same is a matter for consideration during trial. The accused is only called upon to answer the allegations against him after process has been issued against him. The legislature had deliberately not provided for an accused to intervene at this stage as that would frustrate the object of the inquiry.

In Pratap v. State of U.P. (XXVIII)1991 ACC 422, it has been observed that merely because process has been issued against a person, it cannot be said that a decision adversely affecting his rights has been taken, as he has merely been asked to face trial in a Court of law. Therefore no principle of natural justice is infringed if a Magistrate issues process against a person without first affording him an opportunity of hearing. The Code does not contemplate holding two trials, one before the issue of process and the other after the process is issued. The legislature has provided an elaborate procedure for hearing an accused after the trial begins in a Court of law.

The same view has also been taken in S.C. Mishra v. State (I)2001 ACC 342 and Anil Kumar v. State of U.P. (XXVIII)1991 ACC 422 . The aforesaid views in Pratap (supra) and the other abovementioned authorities have been approved by a Full Bench of this Court in Ranjeet Singh and Others Vs. State of U.P. and Another,

The thrust of the argument was that if after cognizance when the Court decides to conduct an inquiry u/s 200 or 202 Code of Criminal Procedure no right of hearing, beyond the right of the accused to be present personally or through counsel is permitted, where would the question arise of the accused having a right to be heard when an order by the Magistrate only directing the police to investigate a cognizable offence in exercise of powers u/s 156(3) Code of Criminal Procedure was passed at the pre-cognizance stage.

In Union of India and another Vs. W.N. Chadha,

... More so, the accused has no right to have any say as regards the manner and method of investigation. Save under certain exceptions under the entire scheme of the Code, the accused has no participation as a matter of right during the course of the investigation of a case instituted on a police report till the investigation culminates in filing of a final report u/s 173(2) of the Code or in a proceeding instituted otherwise than on a police report till the process is issued u/s 204 of the Code, as the case may be Even in cases where cognizance of an offence is taken on a complaint notwithstanding the said offence is triable by a Magistrate or triable exclusively by the Court of Session, the accused has no right to have participation till the process is issued. In case the issue of process is postponed as contemplated u/s 202 of the Code, the accused may attend the subsequent inquiry but cannot participate. There are various judicial pronouncements to this effect but we feel that it is not necessary to recapitulate those decisions. At the same time, we would like to point out that there are certain provisions under the Code empowering the Magistrate to give an opportunity of being heard under certain specified circumstances.

Illustrative circumstances where the accused has been given a right of hearing during trial are spelt out in paragraphs 93 and 94 in W.N. Chaddha (supra). Thus u/s 227 of the Code dealing with discharge of an accused in a trial before a Court of Session under Chap. XVIII, the accused is to be heard and permitted to make his submissions before the stage of framing the charges. u/s 228 of the Code, the trial Judge has to consider not only the records of the case and documents submitted with it, but also the submissions of the accused and the prosecution made u/s 227. Similarly, u/s 239 falling under Chapter XIX dealing with the trial of warrant cases, the Magistrate may give an opportunity to the prosecution and the accused of being heard and to discharge the accused for reasons to be recorded in case the Magistrate considers the charge against the accused to be groundless. Section 240 of the Code dealing with framing of charges also requires examination of an accused u/s 239 before the charge is framed. u/s 235(2), in a trial before a Court of Sessions and u/s 248(2) of the trial of warrant cases, the accused as a matter of right, is to be given an opportunity of being heard. On the other hand the provisions relating to investigation under Chapter XII of the Code do not confer any right of prior notice and hearing to the accused.

According to the decision in W.N. Chaddha the prospective accused can also not get any advantage of the principle of Audi Alteram Partem at the stage of investigation as no substantive rights of the accused who has not yet been summoned are involved. Moreover the accused will have all rights to be heard and to raise his defense pleas during the course of the trial.

In Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwandadha Maharaj Vs. State of Andhra Pradesh and Others, it has been held that even after submission of a final report, the police in exercise of powers u/s 173(8) is empowered to further investigate the matter. No obligation is cast at that stage also to hear the accused, as casting such an obligation would unnecessarily place a burden on the Courts to search for all the potential accused and to provide them with an opportunity of being heard before further investigation could be conducted, defeating its purpose.

In C.B.I. and Anr. v. Rajesh Gandhi and Anr. AIR 1977 SC 93 it has been observed in paragraph 8 that the decision to investigate and the agency which should investigate the offence does not attract the principles of natural justice and the accused has no say in the matter as to who should investigate the offence he is charged with.

In Bhagwant Singh v. Commissioner of Police (XXII)1985 ACC 246 (SC) it was held that after consideration of the report u/s 173(2) of the Code, where the Magistrate decides not to take cognizance and to drop the proceedings or reaches a conclusion that there was no sufficient ground for proceeding against some of the persons mentioned in the FIR, the Magistrate must give notice to the informant and provide him with an opportunity to be heard at the time of consideration of the report. Here again no right of hearing has been conferred on an accused when the Magistrate decides to hear the informant on receipt of the report u/s 173(2) of the Code, when he is of the opinion that no ground exists for proceeding against the accused.

In Karan Singh v. State of U.P. (XXXV)1997 ACC 163 it has been held by the referring single judge, Hon''ble J.C. Gupta that neither under the Code, nor under any principle of natural justice is the Magistrate required to issue notice or afford opportunity of hearing to the accused, where the police has submitted a final report, but the Magistrate on consideration of the material on record decides to take cognizance u/s 190(1)(b) of the Code and directs issue of process to the accused.

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

Where an order is made u/s 156(3) Code of Criminal Procedure directing the police to register FIR and investigate the same, the Code nowhere provides that the Magistrate shall hear the accused before issuing such a direction, nor any person can be supposed to be having a right asking the Court of law for issuing a direction that an FIR should not be registered against him. Where a person has no right of hearing at the stage of making an order u/s 156(3) or during the stage of investigation until Courts takes cognizance and issues process, he cannot be clothed also with a right to challenge the order of the Magistrate by preferring a revision under the Code. He cannot be termed as an "aggrieved person" for purpose of Section 397 of the Code.

Pertinently it has been observed in Abdul Aziz and Others Vs. State of U.P. and Others,

Thus at the stage of Section 156(3) Code of Criminal Procedure any order made by the Magistrate does not adversely affect the right of any person, since he has got ample remedy to seek relief at the appropriate stage by raising his objections. It is incomprehensible that accused cannot challenge the registration of F.I.R. by the police directly, but can challenge the order made by the Magistrate for the registration of the same with the same consequences. The accused does not have any right to be heard before he is summoned by the Court under the Code of Criminal Procedure and that he has got no right to raise any objection till the stage of summoning and resultantly he cannot be conferred with a right to challenge the order passed prior to his summoning. Further, if the accused does not have a right to install the investigation, but for the limited grounds available to him under the law, it surpasses all suppositions to comprehend that he possesses a right to resist registration of F.I.R.

In the case of Chandan v. State of U.P. and Anr. (LVII)2007 ACC 508 : 2007 (1) ALJ (NCC)7(AII), it was also held that the accused does not have any right to challenge an order passed u/s 156(3) Code of Criminal Procedure.

Similarly in Suryakant Dubey and Others Vs. State of U.P and Another, Rakesh Mohan Sharm v. State of U.P. and Ors. (LVII)2007 ACC 488; Rakesh Puri v. State 2007 (1) ALJ 169, it has been held in Single Judge decisions that at the stage of 156(3) of the Code, the prospective accused cannot step in before the Magistrate and interfere with the investigation by challenging a direction for registration of the FIR, when he cannot even participate in the investigation, which is conducted ex parte at this stage.

The learned Single Judge Hon''ble J.C. Gupta J also referred to Arun Vyas and Ors. v. Anita Vyas 1999 (39) SC 170, wherein it was observed that even if a statutory bar for taking cognizance is raised on the ground that the complaint was barred by limitation u/s 468 of the Code, the appropriate stage for the accused to raise this objection was at the stage of framing of charges.

State of Punjab v. Ray Singh and Ors. JT 1999 SC 145, was cited for the proposition that even where a jurisdictional bar to proceed with a case, in the absence of certain pre-conditions as required u/s 195 Code of Criminal Procedure is claimed, no embargo can be placed on the power of the police to investigate. The bar, if at all, could only be considered at the stage when the Court decides to take cognizance of the case.

Sri D.S. Mishra on the other hand has placed reliance on the decision of the Apex Court in Raghu Raj Singh Rousha v. Shiva Sundaram Promoters Private limited and Anr. (2009) 1 SCC 801 for making a submission that at the stage of passage of an order u/s 156(3) Code of Criminal Procedure the accused has a right to be heard.

It may be noted that the backdrop of Raghu Raj Singh Rousha''s case was that the complainant company had filed a complaint petition accompanied by an application u/s 156(3) of the Code before the Metropolitan Magistrate alleging commission of offences under Sections 323, 382, 420, 465, 471, 120B, 506 and 34 IPC against the accused. The Magistrate refused to direct investigation in terms of Section 156(3) Code of Criminal Procedure but directed the complainant to lead pre-summoning evidence. The High Court however in a criminal revision against the order of the Magistrate, where only the State was imp leaded, without giving any opportunity to the accused to be heard set aside the order of the Magistrate and directed the Magistrate to examine the matter afresh after calling for a police report The High Court''s order was set aside by the Apex Court on two counts. One that there was an infringement of Section 401(2) of the Code as the right of hearing to an accused, or any other person who may be aggrieved mandated by the aforesaid provision, was denied to the aggrieved party as a result of the High Court''s order. Two, according to the Apex Court the initial order of the Magistrate, who declined to entertain the application u/s 156(3) of the Code, but directed that the procedure of a complaint case be followed, and that the witnesses be examined u/s 200 and 202 Code of Criminal Procedure indicated that cognizance had been taken, hence a right of hearing had accrued to the accused. That would not have been the case, if only a pre-cognizance order of the Magistrate refusing to issue a direction u/s 156(3) Code of Criminal Procedure had been challenged in the High Court by the informant, where right of hearing had been denied to the accused in a Criminal Revision. These are the two basic distinctions from a direct order by a Magistrate to the police to investigate an offence. Here the direction u/s 156(3) Code of Criminal Procedure has not been issued consequent to any direction by the High Court in a criminal revision at the instance of the informant where only the State is made a party, and the aggrieved accused is denied the opportunity of hearing contemplated u/s 401(2) Code of Criminal Procedure. Also it is a pre-cognizance order only containing a direction of the Magistrate for investigation by the police, where no valuable right has accrued to the prospective accused, which is distinct from the post cognizance order in Rousha''s cases, where the Magistrate had decided to follow the procedure of a complaint case u/s 200 and 202 Code of Criminal Procedure. We therefore find that Rousha''s case is no authority for the proposition that any right of hearing accrues to a prospective accused or that any criminal revision is maintainable against an order of the Magistrate simply directing the police officer in-charge of a police station to investigate a case in exercise of powers u/s 156(3) of the Code.

From a consideration of the aforesaid authorities, it is apparent that even when a complaint is filed u/s 190(1)(a) and the Court decides to take cognizance and to adopt the procedure provided for inquiry u/s 200 and 202 Code of Criminal Procedure the accused is only permitted to remain present during the proceedings, but not to intervene or to raise his defense, until the order issuing summons is passed. The right of hearing of a prospective accused at the pre-cognizance stage, when only a direction for investigation by the police is issued by the Magistrate u/s 156(3) Code of Criminal Procedure can only be placed at a lower pedestal. It is only during the course of trial that the accused has been conferred rights at different stages to raise his defense. As the authorities show, that in the absence of any statutory right of hearing to the prospective accused at the pre-cognizance stage, when the direction to investigate has only been issued by the Magistrate u/s 156(3), the accused cannot be conferred with any right of hearing even under any principle of audi alteram partem.

We have also seen that during the stage of investigation the accused has no right of intervention as to the mode and manner of investigation and who should investigate.

Even after submission of a final report, either when the police decide to order further investigation u/s 173(8) Code of Criminal Procedure or before accepting or rejecting the report, only the informant is required to be heard. The accused is not entitled to be heard even at this stage. In this view it would be unrealistic to confer a right of hearing when only an innocuous direction for investigation is passed by the Magistrate in a case disclosing a cognizable offence., especially when the allied order regarding the decision of a police officer to investigate in exercise of powers u/s 156(1) is not vulnerable to challenge in the criminal revision. Also when objections to maintainability of a case are raised on the ground of limitation u/s 468 or u/s 195 Code of Criminal Procedure the appropriate stage for raising these objections is at the time of cognizance or at the time of framing of charges, and not when a Magistrate issues a direction for investigation u/s 156(3) Code of Criminal Procedure.

In the light of the aforesaid discussion, it is abundantly clear that the prospective accused has no locus standi to challenge a direction for investigation of a cognizable case u/s 156(3) Code of Criminal Procedure before cognizance or issuance of process against the accused, The first question is answered accordingly.

B. Whether an order u/s 156(3) is an interlocutory order and revision against the said order is barred, u/s 397(2) Code of Criminal Procedure.

It was observed by the learned Single Judge that as no substantive rights and liabilities of the accused are involved at the stage when an order is passed by the Magistrate directing the police merely to investigate into a cognizable offence in exercise of powers u/s 156(3) Code of Criminal Procedure and only the informant and the police are in the picture, the said proceedings are purely interlocutory in nature, and are not revisable. It is only after investigation when a report u/s 173(2) of the Code is submitted by the police, that the Magistrate makes up his mind whether to take cognizance or to drop the proceedings.

Section 397(2) of the Code reads as follows.

The powers of revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

Only if cognizance is taken and process issued that the accused gets a right of hearing. Before that stage according to the learned Single Judge, any order, including an order u/s 156(3) Code of Criminal Procedure will be interlocutory in nature.

The Statement of Objects and Reasons of Section 397(2) as contained Clause (d) of Paragraph 5 of the accompanying the 1973 Code, runs thus:

the powers of revision against interlocutory orders are being taken away, as it has been found to be one of the main contributing factors in the delay of disposal of criminal cases.

In support of his contention that a direction by the Magistrate to the police u/s 156(3) Code of Criminal Procedure to register and investigate a criminal offence may not amount to an interlocutory order, but it could at best be described as an intermediate order, Sri D.S Mishra Advocate has placed reliance on the Apex Court decision in Madhu Limaye v. State of Maharashtra (XV)1978 ACC 184.

Madhu Limaye (supra) no doubt lays down that orders, such as the order in that case issuing process against the accused could not be described as a final order, but it was also not an interlocutory order, which could have attracted the bar to the maintainability of the criminal revision in view of Section 397(2) of the Code, because if the plea of the accused was rejected on a point which when accepted could have concluded the particular proceedings. Rather according to the said decision it should be described as a type of intermediate order falling in the middle course. In Madhu Limaye an objection had been raised by the Appellant that the cognizance taken by the Sessions Court without commitment of the case to it in exercise of powers u/s 199(2) Code of Criminal Procedure on a complaint u/s 500 IPC by the Public Prosecutor based on the sanction by the State government u/s 199(4) Code of Criminal Procedure was incompetent, as no complaint had been made by the aggrieved person Sri A.R. Antulay, the Chief Minister, and the alleged defamatory statements related to Acts done in his personal capacity, and not in the discharge of his public duties. If this contention was accepted, it would have resulted in the order of cognizance passed by the Sessions Judge without the case being committed to him, being set aside. Hence this objection would go to the root of the matter, and could not be ignored only by describing the order as interlocutory in nature.

In Amar Nath and Others Vs. State of Haryana and Another, interlocutory orders have been described thus in paragraph 6: "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 rights of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie u/s 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revision jurisdiction of the High Court.

In Amar Nath the order summoning the Appellants in a mechanical manner after the police had submitted a final report against them leading to their release by the Judicial Magistrate, and the revision against that order before the Additional Sessions Judge preferred by the complainant had also failed. Even the subsequent complaint by the complainant had been dismissed on merits. Against the latter dismissal of the complaint when the complainant preferred a revision, the Sessions Judge set aside the order of the Judicial Magistrate and ordered further inquiry, whereupon the Magistrate straightaway summoned the Appellants for trial. This order which appeared to infringe substantial rights acquired by the Appellants was considered an order of moment and not a mere interlocutory order, which would invite the bar to entertaining the revision u/s 397(2) of the Code.

An order u/s 156(3) Code of Criminal Procedure passed by the Magistrate directing the police officer to investigate a cognizable case on the other hand is no such order of moment, which impinges on any valuable rights of the party. Were any objection to the issuance of such a direction to be accepted (though it is difficult to visualize any objection which could result in the quashing of a simple direction for investigation), the proceedings would still not come to an end, as it would be open to the complainant informant to move an application u/s 154(3) before the Superintendent of Police (S.P.) or a superior officer u/s 36 of the Code. He could also file a complaint u/s 190 read with Section 200 of the Code. This is the basic difference from the situations mentioned in Madhu Limaye and in Amar Nath''s cases, where acceptance of the objections could result in the said accused being discharged or the summons set aside, and the proceedings terminated. Also the direction for investigation by the Magistrate is but an incidental step in aid of investigation and trial. It is thus similar to orders summoning witnesses, adjourning cases, orders granting bail, calling for reports and such other steps in aid of pending proceedings which have been described as purely interlocutory in nature in Amar Nath (supra).

In this connection it has been aptly noted in Devarapalli Lakshminarayana Reddy and Others Vs. V. Narayana Reddy and Others, 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 u/s 156(1).

The power conferred u/s 156(3) Code of Criminal Procedure is of the same nature as the power u/s 156(1), which is the power conferred on a police officer in-charge of a police station to investigate any cognizable case to investigate a case, without orders of the Magistrate, which the Magistrate of the local area would have power to inquire into or try. The police officer records an FIR in accordance with the procedure mentioned in Section 154(1) of the Code. In the event of the failure of the police officer to record the information, the aggrieved informant has been given a right to approach the Superintendent of Police u/s 154(3) for a direction for investigation. Such powers may also be exercised by any officer superior in rank to an officer in-charge of a police station in view of Section 36 of the Code. The powers of a Magistrate for giving directions u/s 156(3) is thus allied to the powers of police officers under Sections 154(1), 154(3) and 36 of the Code. It would thus be highly illogical to suggest that the Courts have no jurisdiction to interfere in a criminal revision or other judicial proceedings with the decision of the police officer in-charge of the police station to lodge an FIR u/s 154(1) of the Code or by a superior officer u/s 154(3), or the actual investigation conducted by the police under the aforesaid provisions, but the initial order of the Magistrate u/s 156(3) Code of Criminal Procedure peremptorily reminding the police to perform its duty and investigate a cognizable offence could be subject to challenge in a criminal revision or other judicial proceeding.

We thus see that the orders for investigation are only an ancillary step in aid of the investigation or trial, and are clearly interlocutory in nature, similar to orders granting bail, or calling for records, or issuing search warrants, or summoning witnesses and other like matters which infringe no valuable rights of the prospective accused, and are not amenable to challenge in a criminal revision, in view of the bar contained in Section 397(2) of the Code.

Also the situations in Madhu Limaye or in Amar Nath''s cases are clearly distinguishable, where refusal to consider the objections raised on behalf of the accused may have prevented his being discharged and may have caused him to be summoned to face trial, resulting in the orders being described as neither final nor interlocutory, but intermediate in nature. Revisions against the said intermediate orders would therefore not attract the bar u/s 397(2). Acceptance of the objection to the direction for investigation u/s 156(3) at the pre-cognizance stage, would however not result in the closure of the proceedings against the accused, as the complainant/informant could have sought summoning of the accused by filing a complaint under Sections 190(a) read with 200 or by moving an application for investigation before the S.P. or other superior officer u/s 154(3) or Section 36 of the Code (if that step had not earlier been taken). From the above discussion it follows that the said orders are clearly interlocutory in nature, and not revisable in view of the bar contained in Section 397(2) of the Code.

As the direction for investigation passed by the Magistrate u/s 156(3) is purely interlocutory in nature, and involves no substantial rights of the parties, we are of the view that the bar u/s 397(2) Code of Criminal Procedure to the entertainment of a criminal revision can also not be circumvented by moving an application u/s 482 Code of Criminal Procedure. As observed in State, through Special Cell, New Delhi Vs. Navjot Sandhu @ Afshan Guru and Others, in paragraph 29:

"29... This power should not be exercised against an express bar of law engrafted in any other provision of the Code of Criminal Procedure. This power cannot be exercised as against an express bar in some other enactment.

An application u/s 482 Code of Criminal Procedure would also not lie against an order for investigation u/s 156(3) Code of Criminal Procedure which is an adjunct to the police power to investigate in Chapter XII of the Code, because as held in Divine Retreat Centre Vs. State of Kerala and Others, and Nirmaljit Singh Hoon Vs. The State of West Bengal and Another, whilst conducting an investigation into a offence cognizable offence the police authorities are exercising their statutory powers under Sections 154 and 156 of the Code, and even the High Court in its inherent powers u/s 482 Code of Criminal Procedure cannot interfere with the exercise of this statutory power.

Moreover the said inherent power needs to be utilized very sparingly and with circumspection and as held by the Apex Court while considering the jurisdiction of the High Court in Kurukshetra University and Another Vs. State of Haryana and Another,

It ought to be realized that inherent powers do not confer an arbitrary jurisdiction on the High Court to Act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases.

In Para 9 in single judge decision in the case of Prof. Ram Naresh Chaudhry and Dr. Girija Shanker Tiwari Vs. State of U.P. and Prof. Anirudh Prasad, Head of Department (Law), B.D.U. University, the following observations have been made:

At this stage accused does not come into picture at all, nor can he be heard. He has no locus to participate in the proceedings. He can at the most stand and watch the proceedings. It must be remembered that it is pre-cognizance stage. The nature of the order passed by the Magistrate u/s 156(3) Code of Criminal Procedure directing registration and investigation of case is only a peremptory reminder or intimation to the police to exercise its power of investigation u/s 156(1) Code of Criminal Procedure as has been held by Hon''ble Apex Court in the case of Devarapalli Lakshminarayana Reddy and Others Vs. V. Narayana Reddy and Others, How such a reminder is subject to revisional power of the Court is something which goes beyond comprehension. From the nature of the order itself, it is clear that it is an interlocutory order, not amenable to revisional power of the Court. Section 397(2) Code of Criminal Procedure specifically bars revision filed against interlocutory orders.

Likewise in Rakesh Puri and Anr. v. State of U.P. (supra); Smt. Rekha Verma and Ors. v. State of U.P. and Ors. (LVII)2007 ACC 241 and Abdul Aziz v. State of U.P., Paragraph 13 (supra) it has been held by single judge decisions of this Court that neither a Criminal Revision nor an Application u/s 482 Code of Criminal Procedure would lie against the direction of the Magistrate to register and investigate an FIR in exercise of powers u/s 156(3) Code of Criminal Procedure. In Abdul Aziz it has further been held that only after an FIR can an accused move the High Court in its writ jurisdiction under Article 226 of the Constitution of India for quashing of the FIR, but prior to the registration of the F.I.R., the prospective accused has no right to challenge that order.

Piqued by the overflowing dockets of petitions u/s 482 Code of Criminal Procedure on miscellaneous matters, which have created a huge back log affecting disposal by the High Court of grave matters u/s 302 IPC etc., because the circumspection and caution required before admitting such petitions u/s 482 Code of Criminal Procedure is not being exercised, Hon''ble G.P. Mathur J speaking for the bench has expressed his disquiet thus in paragraph 38 of Hamida v. Rashid AIR 2007 (Supp) SC 361:

38... Ends of justice would be better served if valuable time of the Court is spent in hearing those appeals rather than entertaining petitions u/s 482 Code of Criminal Procedure at an interlocutory stage which are often filed with some oblique motive in order to circumvent the prescribed procedure, as is the case here, or to delay the trial which will enable the accused to win over the witnesses by money or muscle power or they may become disinterested in giving evidence, ultimately resulting in miscarriage of justice.

As we have observed that the direction u/s 156(3) of the Code refers to a pre-cognizance stage, it does not strictly relate to proceedings pending in a Court, but as mentioned herein-above it only relates to directions to the police to carry out the investigation in a cognizable case under Chapter XII of the Code. In this context it has been clarified in State of West Bengal and Others Vs. Sujit Kumar Rana, that inherent powers of the High Court come into play only where an order has been passed by the Criminal Court which is required to be set aside to secure the ends of justice or where the proceedings pending before a Court amounts to abuse of the process of Court.

As on the basis of the aforesaid reasoning we have already held the order u/s 156(3) Code of Criminal Procedure not to be amenable to challenge in a criminal revision or an application u/s 482 Code of Criminal Procedure it is not necessary for this Court to go into the further question whether the said order is administrative in nature as urged by Sri G.S. Chaturvedi and the learned Government Advocate or judicial in nature as contended by Sri D.S. Mishra and Sri Dileep Gupta. Following the decision of the Apex Court in Asit Bhattacharjee Vs. Hanuman Prasad Ojha and Others, we are also not inclined to express any opinion on this issue, and leave the question open for decision in a subsequent proceeding where an answer to this question may become necessary.

In view of the aforesaid, our answer is that the revision against that the order u/s 156(3) of the Code directing the police to investigate is clearly an interlocutory order and a Criminal Revision (as also an order u/s 482 Code of Criminal Procedure against the same) is barred in view of Section 397(2) of the Code.

C. Whether the view of the division bench in Ajay Malviya''s case (supra) that an order u/s 156(3) Code of Criminal Procedure was amenable to revision, no writ petition would lie for challenging an FIR lodged pursuant to the order u/s 156(3) Code of Criminal Procedure will be maintainable, is correct.

Ajay Malviya (supra) relied on the following lines from paragraph 4 in the decision in Devarapalli Lakshminarayana Reddy (supra) "... If instead of proceeding under Chapter XV, he has, in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police u/s 156(3), he cannot be said to have taken cognizance of any offence..." On that basis the Division Bench inferred that an order u/s 156(3) was a judicial order, hence the said order was amenable to revision, and conversely a writ against an FIR which had been lodged on the basis of such an order was barred. However in view of our answers to the first two referred questions that the learned Single Judge who had not gone into the question whether an order u/s 156(3) Cr P.C. was judicial or administrative in nature, has rightly held that the said order was not open to challenge by a prospective accused at the pre-cognizance stage, and it was also an interlocutory order which is not revisable in view of the bar contained u/s 397(2) of the Code. That being the position, the necessary inference is that the view of the Division Bench in Ajay Malviya that the said order is amenable to revision and no writ petition would lie for challenging the FIR cannot be held to be correct.

However it is made clear that the initial order for investigation u/s 156(3) is also not open to challenge in a writ petition, as it is now beyond the pale of controversy that the province of investigation by the police and the judiciary are not overlapping but complementary. As observed by the Privy Council in paragraph 37 in AIR 1945 18 (Privy Council) when considering the scope of the statutory powers of the police to investigate a cognizable case under Sections 154 and 156 of the Code, that it would be an unfortunate result if the Courts in exercise of their inherent powers could interfere in this function of the police. The roles of the Court and police are "complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function.

In State of Bihar and Another Vs. J.A.C. Saldanha and Others, while dealing with the powers of investigation of a police officer as contemplated in Section 156 of the Code of Criminal Procedure the Apex Court has stated thus (at pp. 337-338 of AIR):

There is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the police department the superintendence over which vests in the State Government. The executive which is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime and if an offence is alleged to have been committed it is its bounden duty to investigate into the offence and bring the offender to book. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the Court requesting the Court to take cognizance of the offence u/s 190 of the Code its duty comes to an end

The Magistrate cannot interfere with the investigation so long as the police officer proceeds with the investigation in compliance with the statutory powers mentioned in paragraph XII of the Code. Only in a case where a police officer decides not to investigate an offence, that the concerned Magistrate can intervene and either direct an investigation or in the alternative, if he thinks fit, he himself can, at once proceed or depute any Magistrate subordinate to him to proceed to hold a preliminary inquiry into or otherwise to dispose of the case in the manner provided in the Code. (Vide S.N. Sharma Vs. Bipen Kumar Tiwari and Others,

Even where the informant''s plea for a direction for investigation u/s 156(3) Code of Criminal Procedure is refused by the Magistrate, as held by the three judge bench of the Supreme Court in Aleque Padamsee v. Union of India AIR 2007 SC (Supp) 684, the remedy for the informant lies not in filing a writ petition, but in filing a complaint u/s 190(1)(b) read with Section 200 of the Code. The legal position after review of the authorities as noted in Aleque Padamsee in paragraph 7 was as follows: "The correct position in law, therefore, is that the police officials ought to register the FIR whenever facts brought to its notice show that a cognizable offence has been made out. In case the police officials fail to do so, the modalities to be adopted are as set out in Section 190 read with Section 200 of the Code.

In Sakiri Vasu Vs. State of U.P. and Others, it has been observed in paragraph 27:"The High Court should discourage the practice of filing a writ petitions or petitions u/s 482 Code of Criminal Procedure simply because a person has a grievance that his FIR has not been registered by the police. For this grievance, the remedy lies under Sections 36 and 154(3) before the concerned police officers, and if that is of no avail, u/s 156(3) Code of Criminal Procedure before the Magistrate or by filing a criminal complaint u/s 200 Code of Criminal Procedure and not be filing a writ petition or a petition u/s 482 Code of Criminal Procedure.

It is only at the stage that an FIR has been lodged, and in the rarest cases where the FIR does not prima facie disclose the commission of a cognizable offence, or where there is legal bar to proceeding with the complaint/FIR or if it is a case of no evidence or the evidence is wholly inadequate for proving the charge, or it is demonstrated that the FIR has been lodged in a mala fide manner, only in those circumstances, with the exercise of extreme circumspection can a writ petition be filed challenging the lodging of the FIR and that too strictly in accordance with the parameters and subject to the restrictions mentioned in State of Haryana and others Vs. Ch. Bhajan Lal and others, and the Full Bench decision of this Court in Apt Singh @ Muraha v. State of U.P. (LVI) 2006 ACC 433 and a catena of decisions of the Apex Court and this Court on the issue. In view of what has been stated the view taken in Ajay Malviya''s case cannot be held to be laying down the correct law and needs to be clarified as above.

In this view of the matter, the Opinion of the Full bench on the three questions posed is:

A. The order of the Magistrate made in exercise of powers u/s 156(3) Code of Criminal Procedure directing the police to register and investigate is not open to revision at the instance of a person against whom neither cognizance has been taken nor any process issued.

B. An order made u/s 156(3) Code of Criminal Procedure is an interlocutory order and remedy of revision against such order is barred under Sub-section (2) of Section 397 of the Code of Criminal Procedure, 1973.

C. The view expressed by a Division Bench of this Court in the case of Ajay Malviya v. State of U.P. and Ors. (XLI)2000 ACC 435 that as an order made u/s 156(3) of the Code of Criminal Procedure is amenable to revision, and no writ petition for quashing an F.I.R registered on the basis of the order will be maintainable, is not correct.

As we have recorded a finding that no criminal revision will lie against the orders passed by the Magistrate directing investigation u/s 156(3) Code of Criminal Procedure no useful purpose will be served in sending back the said Criminal Revisions to the Single Judge bench hearing criminal revisions. The stay orders have already been vacated by the Single Judge. All the connected criminal revisions accordingly fail and are dismissed. There shall be no orders as to costs.