Right of the accused in an order passed u/s 156(3)cr.p.c.

Many times it becomes very confusing that either the revision by the accused person or persons in an order passed u/s 156(3)cr.p.c. is maintainable or not and also that the order passed by the magistrate in 156(3) cr.p.c. for filing FIR and investigation is interlocutory in nature or a final order . Not only the accused persons but we lawyers get confused .But if we go through the Full bench decision of Allahabad High Court(U.P.) in the criminal revision of Father Thomas v/s state of u.p.(cr.rev. no.1640 of 2001),the things becomes very clear . In this revision the full bench was constituted and which taken five other revisions of the same matter named Lal chand maurya v/s State of u.p. and others(1731/2001), Jas Ram Kuswaha v/s State of u.p. and another(1581/2001), Mohd. Tahir and others v/s state of u.p. and others(1727/2001), Swaroop and others v/s State of u.p. and others(1656/2001), Naresh and others v/s State of u.p. and others(1658/2001). The full bench taken three main points for the consideration and among of them, the two are very important.

A. Whether the order of the magistrate made in exercise of powers under section 156(3)cr.p.c. directing the police to register and investigate is open to revision when neither cognizance has been taken nor any process issued ?

B. Whether an order made u/s 156(3)cr.p.c.is an interlocutory order and remedy of revision against such order is barred under sub section(2) of section 397cr.p.c.

Findings come out on the issues-

a. Prospective accused has no locus standi to challenge a direction for investigation of a cognizable case under section 156(3)cr.p.c. before cognizance or issuance of process against the accused .

b. The order under 156(3)cr.p.c., the police to investigate is clearly an interlocutory order and a criminal revision is barred in view of sec.397(2) of the code .

The above discussion of the constituted full bench, makes it very clear that the accused have no right of the revision against the order passed by the magistrate to investigate the matter and also the order passed for investigation is interlocutory in nature and thus again revision is barred u/s397(2)cr.p.c.

One more important issue discussed in this revision and which was-

Whether the view of the division bench in Ajay Malviyas case(supra) that an order u/s 156(3)cr.p.c. was amenable to revision, no writ petition would lie for challenging an FIR lodged pursuant to the order u/s 156(3) cr.p.c. will be maintainable, is correct?

The bench find that the view expressed by a division bench of this court in case of Ajay Malviya v/s state of u.p. and others  in 2000(41)ACC435 is not correct.

So from the above mentioned findings of the full bench, it becomes very clear that-

a. Revision by the accused person in an order passed by the magistrate for investigation is not maintainable .

b. The order passed by the magistrate u/s 156(3)cr.p.c. is interlocutory in nature abd thus the revision is barred u/s 397(2) of the code .


prashant pundhir 
on 11 December 2011
Published in Criminal Law
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