Munish Chandra Srivastava vs State of U.P. and Others

Vinod Prasad, J.—The application u/s 156(3) Code of Criminal Procedure was filed by the revisionist Munish Chandra Srivastava in the Court of J.M.- I, Basti on 5.12.2006 with the allegations that he is a practicing advocate in District Basti and he is owner of plot No. 378 on which he and his brother are in opposition. The accused persons Sarjan Lal Srivastava along with other accused person Surendra Mohan Mishra came on the said plot on 21.11.2006 at 4 p.m. along with five or six unknown persons who were armed with firearms and forcibly put four electric pole on the said plot. When the applicant objected to the said installation of electric poles on his plot he was threatened in the witnessing of many other co-villagers. The applicant made a report to the police but no action was taken by it against the accused persons.

With such allegations, the applicant filed an application u/s 156(3) Code of Criminal Procedure, which was allowed by J.M.-I, Basti vide his order dated 14.12.2006. Against the said order, the accused persons filed the revision before the Sessions Judge, Basti which was allowed by the Sessions Judge, Basti by passing his impugned order dated 14.5.2007. Session''s Judge Basti set aside the order for registration of FIR passed by the Magistrate concerned.

I have heard learned Counsel for the revisionist and the learned AGA.

Learned Counsel for the revisionist argued that the Sessions Judge, Basti illegally entertained the revision at the behest of those person against whom the FIR was not yet been registered and therefore, the revision before the lower revisional court was not maintainable and the impugned order dated 14.5.2007 is wholly illegal.

Learned AGA also could not support the fact that how the revision was maintainable before the learned Sessions Judge, Basti at the behest of those persons who were alleged to be an accused against whom the FIR was not yet registered. The matter has been exhaustively dealt with by this Bench in the case of Rakesh Puri and Anr. v. State of U.P. and Anr. 2007 (1) ALJ 169.

It has been held in the said case that order u/s 156(3) Cr.P .C. is in the nature of an administrative direction directing the police to exercise their plenary power of investigation of cognizable offence under Chapter XII Code of Criminal Procedure relating to the power of police to investigate the cognizable offence. It has also been held that order u/s 156(3) Code of Criminal Procedure is a pre - cognizance order therefore revisional power u/s 397/401 Code of Criminal Procedure is not available to an accused person to thwart the registration of FIR of cognizable offences.

Since I am of the view that the revision by the accused persons against whom the FIR has not yet been registered was not maintainable at all therefore, the impugned order passed by the Sessions Judge, Basti is de hors the law. Sessions Judge, Basti wrongly usurped the power of the revisional court and entertained the revision before the FIR was registered against the accused persons. How an accused can install the order for registration of FIR is not understandable? u/s 156(3) Code of Criminal Procedure, the accused persons have got no right to be heard. It is an administrative power of the Magistrate, though passed judicially, directing the police to register the FIR and the said order is in the nature primary reminder to the police to perform its legal duty as has been held by the Apex Court in State of Haryana v. Bhajan Lal 1992 SCC (Cri) 426 and Deverappalli Lakshaminarayana Reddy and Ors. v. V. Narayana Reddy 1976 SCC (3) 252. Lower revisional court can not set aside the primary reminder by exercising the power u/s 397 Code of Criminal Procedure.

I have not issued notices to the accused persons as in my view that would have perpetuated an illegality of hearing the accused even before FIR is registered against them against the law laid down by the Apex Court in Union of India v. W.N. Chadha 1993 SCC (Cri.) 1171.

The impugned order dated 14.5.2007 passed by Session''s Judge, Basti in Criminal Revision No. 1229 of 2006 is hereby set aside and the order dated 14.12.2006 passed by J.M.-I, Basti in Case No. 556/12/06 on the application u/s 156(3) filed by the revisionist is hereby restored. Police is directed to register the FIR. However, this order will not prejudice the rights of the accused persons which they have got under the law against the said registration of FIR.

In view of the aforesaid discussion, this revision is allowed at the admission stage itself.