Virendra Kumar Saini vs State of Uttarakhand and Another

Prafulla C. Pant, J.—By means of this petition moved u/s 482 of Code of Criminal Procedure, 1973 (for short Cr.P.C.), the petitioner has sought quashing of the order dated 31.05.2011, passed by learned Sessions Judge, Hardwar, in Criminal Revision No. 89 of 2011, Umesh vs. State and another, whereby said court has set aside the order passed by the Magistrate u/s 156 (3) Cr.P.C., directing the Police to register and investigate the case. Heard learned counsel for the parties, and perused the various case laws referred by them.

Brief facts of the case are that an application u/s 156 (3) Cr.P.C., was moved by the present petitioner Virendra Kumar Saini (registered as Criminal Miscellaneous application no. 27 of 2011) requesting the Magistrate to direct the Police to register the case. It was alleged in the application that Tata Indica car bearing registration no. UK08T0630 model 2009, was purchased by the petitioner from respondent no. 2 Umesh Kumar for an amount of Rs. 3,50,000/-. And in respect of that deal a cheque no. 0226022 dated 29.06.2010, for an amount of Rs. 85,000/- was given towards part of consideration for the vehicle. It was alleged in the application that the respondent no. 2 committed cheating by getting dishonoured the aforesaid cheque and taking vehicle back into his possession.

The Judicial Magistrate, Hardwar, on 07.03.2011, directed the Magistrate (sic, Police) to register the case. Aggrieved by said order, respondent no. 2 Umesh Kumar filed criminal revision no. 89 of 2011, before the Sessions Judge, Hardwar. After hearing the parties, the revisional court allowed the revision vide its order dated 31.05.2011, and set aside the order passed by the Magistrate. Hence, this petition.

It is argued on behalf of the petitioner that the learned Sessions Judge has no power to entertain the revision against the order passed u/s 156 (3) Cr.P.C. On the other hand, learned counsel for the respondent no. 2 submitted that the revisional court has rightly set aside the order passed by the Magistrate. As such, the only question before this Court is:-

Whether the revision is maintainable against the order passed by the Magistrate u/s 156 (3) Cr.P.C., directing the police to register the case?

On behalf of the petitioner reliance is placed in the case of Father Thomas Vs. State of U.P. and Another, (Full Bench of Allahabad High Court) in which similar question was dealt, and answer given by the Full Bench of Allahabad High Court is that no revision is maintainable against the order passed u/s 156 (3) Cr.P.C., on the ground that the accused has no right to be heard at the stage of proceedings u/s 156 (3) Cr.P.C. It is also held in the aforesaid case by the Allahabad High Court that power of Superintendent of Police to direct to his subordinate officer u/s 156 (1) Cr.P.C., to register the crime is similar to that of the power exercised by the Magistrate u/s 156(3) Cr.P.C. Allahabad High Court has further observed that accused has no right of participation during the course of the investigation till investigation culminates in filing the final report or charge sheet u/s 173 of the Code.

On the other hand, on behalf of respondent no. 2 learned counsel referred to the case of Raghu Raj Singh Rousha Vs. Shivam Sundaram Promoters (P) L and Another, and Amar Nath and Others Vs. State of Haryana and Another, . In the case of Raghu Raj Singh Rousha (supra) it is held by the Apex Court that though the accused has no right to participate, unless the process is issued, but in the case before the Supreme Court, the Magistrate after rejecting the application u/s 156 (3) Cr.P.C., had proceeded, treating the application as criminal complaint u/s 190(1) of Cr.P.C., and cognizance was taken, as such the revision against the said order was maintainable before the High Court. In case of Amarnath (supra) the Apex Court had held that the issuance of summoning order in the criminal complaint case u/s 204 Cr.P.C., is final order, and as such revision is maintainable.

Unlike the case of Raghu Raj Singh Rousha (supra) and that of Amarnath (supra) the Magistrate in the present case did not treat the application u/s 156 (3) Cr.P.C., as a criminal complaint case, nor appears to have taken the cognizance of the offence. In the case of Raghu Raj Singh Rousha Vs. Shivam Sundaram Promoters (P) L and Another, , after rejecting the application u/s 156 (3) Cr.P.C., the Magistrate had proceeded u/s 200 and 202 Cr.P.C., treating the application as criminal complaint. Similarly in the case of Amar Nath and Others Vs. State of Haryana and Another, , police submitted final report, and on the protest petition, the Magistrate did not find any error with the final report, and treated the protest petition as criminal complaint and issued summons after receiving directions of the revisional court to take fresh decision. Had the Magistrate taken the View u/s 203 Cr.P.C., on the criminal complaint, the proceedings could have finally terminated as such against the order passed u/s 204 Cr.P.C., it was held that the revision is maintainable. None of these cases say that against the mere order of directing the police to register the case (under-section 156 (3) Cr.P.C.), revision is maintainable.,

Having considered submissions of learned counsel for the parties, and after going through the various case laws, this Court is of the view that the only remedy for the accused against the order directing to register the case and investigate, was to challenge the First Information Report registered by the Police by moving a writ petition under Article 226 of Constitution of India. [Reference Amrawatai vs. State of U.P. 2004 (50) ACC 742 (Seven Judges Judgment)]. For the reasons as discussed above, since the revision against the order passed by the Magistrate was not maintainable, the impugned order dated 31.05.2011, passed by the. Sessions Judge, Hardwar, in Criminal Revision no. 89 of 2011, is liable to be quashed. Accordingly, the same is quashed.