Manish Kumar Tiwari and Others vs State of U.P. and Sunil Tiwari

Vinod Prasad, J.—Half a dozen plus one of the revisionists, namely, Manish Kumar, Ashish Kumar, Smt. Geeta Devi, Km. Pratima, Gudlas, Jai Devi and Shakuntala have challenged the order dated 18.7.2006 passed by Judicial Magistrate-II, Bhadohi Gyanpur in Criminal Misc. Application No. 7 of 2006, Sunil Tiwari v. Manish Kumar Tiwari and Ors. u/s 156(3) Cr. P.C. on 13.7.2006.

By the impugned order dated 18.7.2006, Judicial Magistrate-II Bhadohi Gyanpur had ordered registration of case and investigation thereon u/s 156(3) Cr. P.C., which order has been challenged by the present revisionists in the revision who are the proposed accused persons in the application u/s 156(3) Cr. P.C.

Heard Sri Samit Gopal, learned Counsel for the revisionists and the learned A.G.A. in opposition.

Section 156(3) Cr. P.C. is an administrative order provided under Chapter XII Cr. P.C. dealing with power of the police to register the case and investigate the same. It is a judicially exercisable administrative power over the police echelons. The power, which has been conferred on the Superintendent of Police u/s 154(2) Cr. P.C. has been conferred on the Magistrate u/s 156(3) Cr. P.C. It is not a case decided and nobody is affected by passing the order u/s 156(3) Cr. P.C. If the cognizable offence is disclosed through an application u/s 156(3) Cr. P.C., the Magistrate is bound to order for registration of the F.I.R. and investigation of the offence because the foremost and primary duty of the police is to register the F.I.R. of cognizable offences u/s 154 Cr. P.C. and investigation the offence u/s 156(1) Cr. P.C. thereof.

No person, who is an accused of a cognizable offence in an application u/s 156(3) Cr. P.C. has got a right to challenge the order for registration of the F.I.R. against him. An accused of a cognizable offence has no right to install the registration of the F.I.R. against him.

This matter has come up before me earlier also in case reported in 2006 A.C.C. 910 Rakesh Puri and Anr. v. State of U.P. and Anr. Alter going through various judgements of the Apex Court, which has been referred therein it has been held that an order u/s 156(3) Cr. P.C. is not amenable to revisional power of the High Court or the Sessions Court u/s 397/401 Cr. P.C. The Apex Court has held in the case of Union of India v. W.N. Chadha 1993 S.C.C 1171 that an accused before summoning has got no right to be heard. In the present case, the accused does not come in the picture at all. Since cognizable offence was disclosed in the application u/s 156(3) Cr. P.C. the Magistrate was fully justified in passing the order of registration of F.I.R. and investigation of the offence. The present revision have got no right to challenge the said order. This revision is not maintainable and hence, it is dismissed.