HIGH COURT OF JUDICATURE AT ALLAHABAD
Order of investigation passed under section 156(3) CrPC can not be challenged in Revision or proceeding under section 482 CrPc by propsective accused.
Crl. Revision No. 63 of 2002
HIGH COURT OF JUDICATURE AT ALLAHABAD, Dated:30-01-2009
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 12
Crl. Revision No. 63 of 2002
Ram Dhani...................... Revisionist
(1)State of U.P. ......................... } Opposite parties.
(2)Smt. Maya Devi..............................}
Hon'ble Vijay Kumar Verma, J.
The case has been taken up in the revised list. None is present for the revisionist.
2.Heard arguments of Sri H. N. Singh, learned counsel for the opposite party no. 2 and AGA for the State and perused the material on record.
3. By means of this Revision, order dated 09.01.2002 passed by the Chief Judicial Magistrate, Sonbhadra in criminal misc. application no. 17 of 2002 (Smt. Maya Devi Vs. Ram Dhani and others) under section 462, 466, 468, 471, 419, 420 IPC has been challenged by the prospective accused.
4. By the impugned order, the learned Chief Judicial Magistrate has allowed the application of Smt. Maya Devi under section 156(3) Cr.P.C. and S.O. P.S. Robertsganj has been directed to investigate the case after registration of the FIR.
5. At the outset, it is contended by learned counsel for the opposite party no. 2 and learned AGA 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 under section 156(3) Cr.P.C. directing investigation after restoration of the FIR. The contention of the learned counsel for the opposite party no. 2 is that on the FIR being lodged in pursuance of the impugned order, the accused persons could seek remedy under Article 226 of Constitution of India for quashing the FIR and they have no right to challenge the impugned order either in Revision or in the proceedings under section 482 Cr.P.C.
6. Having given my thoughtful consideration to the submissions made by the learned counsel for the opposite party no. 2 and learned AGA, I agree that prospective accused can not challenge the order passed by the Magistrate under section 156(3) Cr.P.C. allowing the application and directing investigation by the police.
7.I had an occasion to consider this matter in the case of Prof. Ram Naresh Chaudhary and another Vs. State of U.P. and others 2008(60) ACC 476. The following observations made in para 9 of the said judgement 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 under Section 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 under Section 156(1) Cr.P.C, as has been held by Hon'ble Apex Court in the case of Devarappalli Lak-Shaminarayana Reddy and others Vs. V. Narayana Reddy and others (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."
8.This Court in the case of Karan Singh Vs. State (1997 (34) ACC 163), has observed as follows:-
"Where an order is made under section 156 (3) Cr.P.C. directing the police to register FIR 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 FIR should not be registered against him. Where a person has no right of hearing at the stage of making an order under section 156(3) or during the stage of investigation until Courts takes cognizance and issues process, he can not be clothed also with a right to challenge the order of the Magistrate by preferring a revision under the Code. He can not be termed as an "aggrieved person" for purpose of section 397 of the Code."
9.This matter was considered again by me in the case of Gulam Mustafa @ Jabbar Vs. State of U.P. and others 2008 (61) ACC 922. 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 can not 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 can not 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."
10. Distinguishing Division Bench ruling in the case of Ajay Malviya Vs. State of U.P., 2000(41) ACC 435, this Court in the case of Rakesh Puri and another Vs. State of U.P. and another 2006 (56) 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 under section 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 under section 397(1) Cr.P.C. being barred by section 397(2) Cr.P.C. nor at his instance an application under Section 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 FIR registered by rejecting such an application which will not amount to securing the ends of justice but will amount to travesty of it.
11.This matter was considered in detail by this Court in the case of Chandan Vs. State of U.P. and another 2007(57) ACC 508 also in which, it was held that accused does not have any right to challenge an order passed under Section 156(3) Cr.P.C.
12. Relying upon the decision of the Apex Court in the case of Central Bureau of Investigation Vs. State of Rajasthan (2001 (42) ACC 451), it was held by this Court in the case of Rakesh Puri Vs. 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-pare 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 under section 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 FIR of cognizable offence against him."
13. 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 FIR by challenging the order passed by the Magistrate under section 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.
14. Consequently, the Revision is hereby dismissed. Interim order dated 17.01.2002 stands vacated.