Prof. Ram Naresh Chaudhary and Another vs State of U.P. and Others

Vijay Kumar Verma, J.—Whether the revision against an order passed u/s 156(3) of the Code of Criminal Procedure directing registration of F.I.R. and investigation of the case is maintainable is the main question that falls for consideration in this revision, which has been preferred against the order dated 20.4.2004, passed by Additional Chief Judicial Magistrate, Court No. 14, Gorakhpur in Misc. Application No. 140 of 2004, whereby S.H.O., P. S., concerned has been directed to investigate the case after lodging the F.I.R. on the basis of the application moved by Prof. Anirudh Prasad (opposite party No. 3).

The facts leading to the filing of this revision, in brief, are that Prof. Anirudh Prasad was the Head of Department of Law Faculty in Deen Dayal Upadhyay University, Gorakhpur in the year 2002-03. He moved an application (Annexure-1) u/s 156(3) of the Code of Criminal Procedure (Cr. P.C. for short) in the Court of Chief Judicial Magistrate, Gorakhpur on 10.3.2004 with the prayer to direct S.H.O., P. S. Cantt., Gorakhpur to lodge the F.I.R. and investigate the case. Shorn of unnecessary details, the allegations made in that application, in brief, are that Km. Sanyogita Misra by playing fraud on the University, sought admission in LL.B. 1st year in the year 2002-03 in O.B.C. category on the basis of forged caste certificate in collusion with Prof. Ram Naresh Chaudhary and Dr. Girija Shanker Tiwari (both revisionists). Prof. Ram Naresh Chaudhary was the Dean of Law Faculty at the relevant time and when the applicant made complaints to University authorities, Dr. Girija Shanker Tiwari was the Dean of this faculty, who being fully conversant of all the facts, admitted Km. Sanyogita in LL.B. 2nd Year. It is further averred in the application that real name of Km. Sanyogita is Sanyogita Misra, who is the daughter of Raghuwar Dayal Misra, but she sought admission showing her name as Km. Sanyogita Chauhan daughter of Vibhuti Prasad Chauhan on the basis of forged papers, but in spite of complaint made by the applicant, Dr. Girija Shanker Tiwari permitted Km. Sanyogita to continue her studies and admitted her in LL.B. 2nd year. After calling for the report from S.H.O., P. S. Cantt., Gorakhpur, as well as the authorities of Deen Dayal Upadhyay University, the learned Additional Chief Judicial Magistrate, Gorakhpur, vide impugned order dated 20.4.2004 directed the S.H.O. concerned to investigate the case after lodging the F.I.R. and submit his report in accordance with law. Hence, this revision.

I have heard Sri V. P. Tripathi, learned Counsel for the revisionists, learned A.G.A. representing the State of U.P. and Sri R. K. Ojha, learned Counsel for Prof. Anirudh Prasad (opposite party No. 3).

At the very outset, it was submitted by learned A.G.A. as well as by learned Counsel for the opposite party No. 3 that revision against the order passed u/s 156(3), Cr. P.C. directing the police to investigate the case after lodging the F.I.R. is not maintainable, being barred by Section 397(2), Cr. P.C. It was also submitted that the proposed accused has no right to challenge the order allowing the application u/s 156(3), Cr. P.C. The contention raised by learned Counsel for the opposite parties was that the order passed u/s 156(3), Cr. P.C. is an order of pre-cognizance stage, which cannot be challenged in revision at the instance of proposed accused. Next submission made by learned Counsel for the opposite parties was that in pursuance of the impugned order, F.I.R. has been lodged at P. S. Cantt., Gorakhpur and a case under Sections 120B, 419, 420, 467 and 468, I.P.C. has been registered against the revisionists at Crime No. 3/2004 and hence, on this ground, instant revision has become infructuous and any interference by this Court in that order will be unwarranted.

The learned Counsel for the revisionists on the other hand contended that the order passed u/s 156(3), Cr. P.C. directing the police to investigate the case after lodging the F.I.R. is judicial order, which seriously affects the rights of the person against whom it is made and hence, such order can be challenged in revision. It was also submitted by learned Counsel for the revisionists that Prof. Anirudh Prasad had no locus standi to move the application u/s 156(3), Cr. P.C. in respect of alleged offences. It was further submitted by the learned Counsel for the revisionists that on making enquiry, the caste certificate of O.B.C. Category of Km. Sanyogita was found genuine and hence, no cognizable offence requiring investigation is made out in this case.

Having given my thoughtful consideration to the rival submissions made by the parties'' counsel, in my considered view, revision at the instance of proposed accused against the order passed u/s 156(3), Cr. P.C. directing the police to investigate the case after lodging the F.I.R. is not legally maintainable and the proposed accused have no right to challenge such order.

The impugned order was passed under Chapter XII, Cr. P.C. at pre-cognizance stage. Order passed u/s 156(3), Cr. P.C., though a judicial order is administrative in nature. Such order cannot be challenged by the proposed accused by means of revision or moving an application u/s 482, Cr. P.C. No accused can stop the registration of F.I.R. against him. The Hon''ble Apex Court has observed in the case of Suresh Chand Jain v. State of Madhya Pradesh (42)2001 ACC 459 : 2001 (1) ACR 586 (SC ), that "the significant point to be noticed is when a Magistrate orders investigation under Chapter XII, he does so before he takes cognizance." In the case of Mohd. Yousuf Vs. Smt. Afaq Jahan and Another, it has been laid down by Hon''ble Apex Court as follows:

The various steps to be adopted for investigation u/s 156 of the Code have been elaborated in Chapter XII of the Code. Such investigation would start with making the entry in a book to be kept by the officer-in-charge of a police station, of the substance of the information relating to the commission of a cognizable offence. The investigation started thereafter can end up only with the report filed by the police as indicated in Section 173 of the Code. The investigation contemplated in that Chapter can be commenced by the police even without the order of a Magistrate. But that does not mean that when a Magistrate orders an investigation u/s 156(3) it would be a different kind of investigation. Such investigation must also end up only with the report contemplated in Section 173 of the Code. But the significant point to be noticed is, when a Magistrate orders investigation under Chapter XII he does so before he takes cognizance of the offence.

Further it has been held in the case of Superintendent and Remembrance of Legal Affairs, West Bengal v. Abani Kumar Banerjee AIR 1950 Cal 437, as follows:

When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for the taking action of some other kind, e.g., ordering investigation u/s 156(3) or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.

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), Cr. P.C. 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), Cr. P.C., as has been held by Hon''ble Apex Court in the case of Devarappalli Lakshaminarayana Reddy and Ors. v. V. Narayana Reddy and Ors. 1976 ACC 230. 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), Cr. P.C. specifically bars revision filed against interlocutory orders.

This Court in the case of Karan Singh v. State (34)1997 ACC 163: 1996 ACR 856, has observed as follows:

Where an order is made u/s 156(3), Cr. P.C. directing the police to register F.I.R. and investigate the same, the Code no where 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 F.I.R. 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.

Thus, at the stage of Section 156(3), Cr. P.C. 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. Thus, from the discussions made above, it is clear that an 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 instal 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.

Distinguishing Division Bench ruling in the case of Ajay Malviya v. State of U.P. (41)2000 ACC 435 : 2000 (2) ACR 1778, this Court in the case of Rakesh Puri and Anr. v. State of U.P. and Anr. (56)2006 ACC 910, has held as under:

To sum up the discussions made above it is clear that the alleged accused has no right to challenge an order passed u/s 156(3), Cr. P.C. at pre-cognizance stage by a Magistrate and no revision lay against such an order at the instance of the alleged accused u/s 397(1), Cr. P.C. being barred by Section 397(2), Cr. P.C. nor at his instance an application u/s 482, Cr. P.C. is maintainable for the simple reason that if cognizable offence is disclosed in an application filed by the aggrieved person, then his such an application must be investigated to bring culprits to books and not to thwart his attempt to get the F.I.R. registered by rejecting such an application which will not amount to securing the ends of justice but will amount to travesty of it.

Similar view has been expressed by this Court in the case of Smt. Rekha Verma and Ors. v. State of U.P. and Ors. (57)2007 ACC 241 : 2007 (2) ACR 1777, in which it is held that order passed u/s 156(3), Cr. P.C. to direct registration of the case is not revisable and application u/s 482, Cr. P.C. also is not maintainable. In the case of Rakesh Mohan Sharma v. State of U.P. and Ors. (57)2007 ACC 488: 2007 (3) ACR 2376, also, it is held by this Court that order passed u/s 156(3), Cr. P.C. is an interlocutory order, revision against which is not maintainable being barred by Section 397(2), Cr. P.C. In the case of Smt. Rekha Verma v. State of U.P. (supra), this Court has observed as follows:

Thus, till the stage of summoning, there is no proceeding so far as the accused is concerned. Thus, it is clear that so far accused is concerned he is not a party to any "proceeding" till the stage of summoning and he cannot be heard. Section 397, Cr. P.C. deals with "proceedings". Thus applying the law laid down by the Apex Court so far as accused is concerned, no "proceedings" has taken place at the stage of Section 156(3) of the Code. Moreover, order u/s 156(3) of the Code is in the nature of an administrative order, because it empowers the Magistrate only to issue a direction to the police to exercise their plenary power of investigation and nothing more. The power which has been conferred on the Superintendent of Police u/s 154(3) of the Code has been conferred on the Magistrate u/s 156(3), Cr. P.C. to check the arbitrary exercise of power by the police echelons and to get the law observed by it and not to flout it. So far as the accused is concerned, he has got no right to object to the registration of F.I.R. against him. He has got no right under any law to appear and say that the Magistrate does not possess the power to order for registration of F.I.R. against him. There is no provision in the Code, which confers such a right to an accused. Conferring such a right through judicial pronouncements will amount to legislation which power the Courts do not possess. The Code of Criminal Procedure (Code) does not confer pre F.I.R. registration hearing on a prospective accused.

Again this matter was considered in detail by this Court in the case of Chandan v. State of U.P. and Anr. (57)2007 ACC 508 : 2007 (2) ACR 2326 in which, it was held that accused does not have any right to challenge an order passed u/s 156(3), Cr. P.C.

Relying upon the decision of Apex Court in the case of Central Bureau of Investigation v. State of Rajasthan (42)2001 ACC 451: 2001 (2) ACR 1875 (SC), it was held by this Court in the case of Rakesh Puri v. State (supra) as follows:

It is preposterous even to cogitate that a person has a right to appear before the Magistrate to oppose an application seeking a direction from him for registration and investigation of the offence when he has no right to participate in the said ex-parte proceeding. If permitted this will amount to killing of foetus of investigation in the womb when it was not there at all. Such power has not been conferred under the law on the prospective accused.

When the accused does not have any right to participate in a proceeding how can he be permitted to challenge an interlocutory order passed in such a proceeding. If an accused cannot stop registration of a complaint u/s 190(1) (a), Cr. P.C., howsoever fanciful, mala fide or absurd the allegations may be, he certainly does not possess the power to stall registration of F.I.R. of cognizable offence against him.

For the reasons mentioned hereinabove and in view of the law laid down in aforesaid cases, I am of the considered view that the accused has no right to stop registration of F.I.R. and the revision filed by him against the order allowing the application u/s 156(3), Cr. P.C. is not legally maintainable. Therefore, instant revision is liable to be dismissed on this ground alone.

From the counter-affidavit of Anirudh Prasad (opposite party No. 3), it is observed that in pursuance of the impugned order, F.I.R. has been lodged at P. S. Cantt., Gorakhpur and a case u/s 120B/419/420/ 467/468, I.P.C. has been registered at Crime No. 3/2004. Hence, on this ground also, interference by this Court in the impugned order is not warranted now, because even if this revision is allowed and the application u/s 156(3), Cr. P.C. is rejected after setting aside the impugned order, then also, the F.I.R. of Case Crime No. 03/2004, which has come into existence will not be quashed by this Court in its revisional jurisdiction. Although extraordinary remedy under Article 226 of the Constitution of India can be availed by the accused person for quashing the F.I.R., and in appropriate cases, F.I.R. can be quashed by this Court exercising jurisdiction under Article 226 of the Constitution of India, if no offence is made out from the averments made in the F.I.R., but in revisional jurisdiction u/s 397/401, Cr. P.C., F.I.R. cannot be quashed. Now a report u/s 173(2), Cr. P.C., has to be submitted by the police after investigation of Case Crime No. 03/2004, unless the F.I.R. is quashed in appropriate proceedings by this Court. The Division Bench of this Court in the case of Om Prakash Singh and Anr. v. State of U.P. and Ors. (49)2004 ACC 341 : 2004 (2) ACR 1667, has held that authority or jurisdiction of the police to investigate the case cannot be whittled away in the event of rejection of the application u/s 156(3), Cr. P.C. Similar view has been expressed by this Court in the case of Dorey Lal v. State of U.P. and Ors. (52)2005 ACC 140 : 2005 (2) ACR 1279. Therefore, having regard to the observations made in these cases, this Court in this proceeding u/s 397/401, Cr. P.C. will not be justified now to set aside the impugned order, which does not suffer from any illegality. Moreover, on merit also, the application moved by opposite party No. 3 Prof. Anirudh Prasad u/s 156(3), Cr. P.C. cannot be rejected, because from the averments made in this application prima facie cognizable offence of serious nature requiring investigation is made out. Falsehood or truthfulness of the allegations made in the application u/s 156(3), Cr. P.C. cannot be looked into by this Court in revisional jurisdiction and this matter can be seen only by the Investigating Officer during investigation of Case Crime No. 03/2004. If the allegations made in the F.I.R., which has been registered pursuant to the impugned order, are found false, then final report can be submitted by the Investigating Officer, but in any case, this Court in the proceeding u/s 397/401, Cr. P.C. has no jurisdiction to quash the F.I.R. and hence, on this ground also, interference by this Court in the impugned order will be unwarranted.

Consequently, the revision is hereby dismissed. Stay order dated 17.5.2004 stands vacated.

Office to send a copy of this judgment to Additional Chief Judicial Magistrate, Court No. 14, Gorakhpur for necessary action.