Ram Dhani vs State of U.P. and Another

Vijay Kumar Verma, J.—The case has been taken up in the revised list. None is present for the revisionist.

Heard arguments of Sri H. N. Singh, learned Counsel for the opposite party No. 2 and A.G.A. for the State and perused the material on record.

By means of this revision, order dated 9.1.2002, passed by the Chief Judicial Magistrate, Sonbhadra in Criminal Misc. Application No. 17 of 2002, Smt. Maya Devi v. Ram Dhani and Ors. under Sections 462, 466, 468, 471, 419 and 420, I.P.C.has been challenged by the prospective accused.

By the impugned order, the learned Chief Judicial Magistrate has allowed the application of Smt. Maya Devi u/s 156(3), Cr. P.C. and S.O., P.S. Robertsganj has been directed to investigate the case after registration of the F.I.R.

At the outset, it is contended by learned Counsel for the opposite party No. 2 and learned A.G.A. that revision against the impugned order is not legally maintainable as the prospective accused has no right to challenge the order passed by the Magistrate allowing the application u/s 156(3), Cr. P.C. directing investigation after restoration of the F.I.R. The contention of the learned Counsel for the opposite party No. 2 is that on the F.I.R. being lodged in pursuance of the impugned order, the accused persons could seek remedy under Article 226 of Constitution of India for quashing the F.I.R. and they have no right to challenge the impugned order either in revision or in the proceedings u/s 482, Cr. P.C.

Having given my thoughtful consideration to the submissions made by the learned Counsel for the opposite party No. 2 and learned A.G.A., I agree that prospective accused cannot challenge the order passed by the Magistrate u/s 156(3), Cr. P.C. allowing the application and directing investigation by the police.

I had an occasion to consider this matter in the case of Prof. Ram Naresh Chaudhary and Anr. v. State of U. P. and Ors. (60) 2008 ACC 476: 2008 (1) ACR 874.The following observations made in para 9 of the said judgment are worth mentioning:

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 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 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 take 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.

This matter was considered again by me in the case of Gulam Mustafa alias Jabbar v. State of U. P. and Ors. (61) 2008 ACC 922: 2008 (2) ACR 2039.The following observations made in para 8 of the report at page 924 are relevant:

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. 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.

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.

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, also 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 the 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 follow:

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.

In view of the law laid down in the aforesaid cases, I am of the considered opinion that the prospective accused has no right to stop the registration of the F.I.R. by challenging the order passed by the Magistrate u/s 156(3), Cr. P.C. allowing the application and directing investigation. Therefore, in present case also, the revision preferred by the revisionist against the impugned order is not legally maintainable and is liable to be dismissed on this ground alone.

Consequently, the revision is hereby dismissed. Interim order dated 17.1.2002 stands vacated.