Preeti Srivastava vs State of U.P. and Others

Arvind Kumar Tripathi (II), J.—This criminal revision has been filed by Preeti Srivastava challenging the order dated 23.9.2013 passed by Additional Chief Judicial Magistrate, Court No. 27, Lucknow by which an application u/s 156(3), Cr.P.C. was rejected. Heard Sri. T.N. Tiwari, learned counsel for the revisionist assisted by Sri. Vishnu Kumar Srivastava, learned counsel and Shri. Faisal Ahmad Khan, learned AGA for the State.

Brief facts of the case is essential for this revision is that an application u/s 156(3), Cr.P.C. was moved by Preeti Srivastava before the Court of Additional Chief Judicial Magistrate, Court No. 27, Lucknow for directing the police station concerned to register an FIR and for investigating the matter this application was rejected by which Magistrate feeling aggrieved this criminal revision has been filed.

It was submitted by learned counsel for the revisionist that as the contents of the application constitute a cognizable offence hence the Magistrate was bound to allow the application and direct the Station in-charge concerned to register and investigate the case.

Learned AGA argued that in view of the case of Father Thomas Vs. State of U.P. and Another, criminal revision is not maintainable.

Replying to the argument learned counsel for the revisionist argued that the case of Father Thomas relates to the case where application u/s 156(3), Cr.P.C. has been allowed and it has been held by the Full Bench that revision is not maintainable at the instance of proposed accused.

In the case Father Thomas Vs. State of U.P. and Another, though the matter was that an application u/s 156(3), Cr.P.C. was allowed and when revision came before learned Single Judge for decision, he was of the view that the accused has no locus standi to challenge an order passed, and an order directing investigation is purely interlocutory in nature in view of statutory bar contain u/s 397(2) of the Code the said order was not reviseable. However in the case of Ajay Malviya v. State of U.P. and others 2000 (41) All LJ 2730; in which has been held by Division Bench that u/s 156(3), Cr.P.C. is a judicial order. Hence any FIR registered on the basis cannot be challenged by means of writ petition, learned single Judge raised doubts about the correctness of the decision of Division Bench Ajay Malviya v. State of U.P. and others and the matter was referred before the Larger Bench. While referring the matter to the Larger Bench, learned single Judge formulated following questions for consideration:

A. Whether the order of the Magistrate made in exercise of powers u/s 156(3) Cr.P.C. directing the police to register and investigate is open to revision at the instance of a person against whom neither cognizance has been taken nor any process issued?

B. Whether an order made 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 : (2000 All LJ 2730), 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?

While answering the three questions the Full Bench has held in para 65 is that;

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. 2000 (41) ACC 435 : (2000 All LJ 2730) that as an order made u/s 156(3) of the Code of Criminal Procedure is amenable t6 revision, and no writ petition for quashing an F.I.R. registered on the basis of the order will be maintainable, is not correct.

The Full Bench''s answer to question No. 1 is that if an application u/s 156(3), Cr.P.C. has been allowed then it is on open to revision by proposed accused.

If the intention of learned single Judge was only to refer the controversy regarding the decision of Ajay Malviya''s case (supra) the learned Single Judge would not have formulated Question ''B'' and the matter would have been ended only after formulating. Questions A and B. When learned single Judge formulated Question ''B'' then it was the intention of learned single Judge to get the controversy decided once for all and thus they framed Question ''B''.

The Full Bench while giving opinion to this Question B has answered in a very categorical term that an order passed u/s 156(3), Cr.P.C. is an interlocutory order and remedy is revision is barred.

"An order made u/s 156(3) Cr.P.C." clearly includes an order rejecting the application u/s 156(3), Cr.P.C. otherwise the Full Bench would not have answered the Question ''B''.

Learned counsel for the revisionist argued on the strength of the decision of Apex Court in Raghu Raj Singh Rousha Vs. Shivam Sundaram Promoters (P) L and Another, that criminal revision is maintainable against an order rejecting the application u/s 156(3), Cr.P.C.

The Full Bench of this High Court discussed the matter of Raghu Raj Singh Rousha''s case and held para 28 as under:--

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, 120-B, 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 impleaded, without giving any opportunity to the accused to be heard set aside the order of the Magistrate and directed the Magistrate to examine the matter afresh after calling for a police report. The High Court''s order was set aside by the Apex Court on two counts. One that there was an infringement of Section 401(2) of the Code as the right of hearing to an accused, or any other person who may be aggrieved mandated by the aforesaid provision, was denied to the aggrieved party as a result of the High Court''s order. Two, according to the Apex Court the initial order of the Magistrate, who declined to entertain the application u/s 156(3) of the Code, but directed that the procedure of a complaint case be followed, and that the witnesses be examined under Sections 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 under Sections 200 and 302, 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 incharge of a police station to investigate a case in exercise of powers u/s 156(3) of the Code.

In the case of Aleque Padamsee and Others Vs. Union of India (UOI) and Others, ; the Apex Court has held that whenever any information is received by the police about the alleged commission of offence which is a cognizable one there is a duty to register the FIR. There can be no dispute on that score. The only question is whether a writ can be issued to the police authorities to register the same. The basic question is as to what course is to be adopted if the police does not do it. The correct position in law, therefore, is that the police officials ought to register the FIR whenever facts brought to its notice show that 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 the case of All India Institute of Medical Sciences Employees'' Union (Regd.) through its President Vs. Union of India (UOI) and Others, , the Apex Court has held Para 4:

When the information is laid with the police but no action in that behalf was taken, the complainant is given power u/s 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to inquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the concerned police to investigate into the offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action; he is empowered to dismiss the complaint u/s 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses offence, he is empowered to take cognisance of the offence and would issue process to the accused.

Similarly, the Apex Court has again in the Case of Hari Singh Vs. The State of U.P., held that para 4:

When the information is laid with the police but no action in that behalf is taken, the complainant can u/s 190 read with Section 200 of the Code lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint u/s 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and. would issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees'' Union (Regd.) through its President Vs. Union of India (UOI) and Others, . It was specifically observed that a writ petition in such cases is not to be entertained. The above position was again highlighted recently in Gangadhar Janardan Mhatre Vs. State of Maharashtra and Others, and in Minu Kumari and Another Vs. The State of Bihar and Others, .

Considering the above decisions of the Apex Court and after a careful reading of the decision of Full Bench of this in Court Father Thomas ( Father Thomas Vs. State of U.P. and Another, , it is abundantly clear that an order rejecting the application u/s 156(3), Cr.P.C. is also an interlocutory order and remedy of revision is barred. From the above discussion, this criminal revision is liable to be dismissed, and is hereby dismissed as being barred under subsection(2) of Section 397, Cr.P.C.