HIGH COURT OF JUDICATURE AT ALLAHABAD
Criminal Revision No. 2012 of 2007
Gulam Mustafa @ Jabbar..Versus..State of U.P
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 55
Criminal Revision No. 2012 of 2007
Gulam Mustafa @ Jabbar.............................. Revisionist.
State of U.P and others................................... Opposite Parties.
Hon'ble Vijay Kumar Verma, J.
List is revised. None is present for the opposite parties no. 2 to 8, although they have filed counter affidavit through their counsel Sri A.S. Srivastava. Heard Sri V. K. S. Chandel, learned counsel for the revisionist, learned A.G.A. for the State and perused the material on record.
2.Challenge in this revision preferred under Section 397 of the Code of Criminal Procedure (in short, "the Cr.P.C.) is to the judgement and order dated 07.07.2007 passed by the Sessions Judge, Basti in criminal revision no. 550 of 2007 (Hukum Ali and others Vs. State of U.P. and another), whereby allowing the revision, order of registration of F.I.R. and investigation has been set-aside.
3. The facts leading to the filing of this revision, in brief, are that an application under Section 156(3) Cr.P.C. was moved by the revisionist for issuing direction to the S.O. P.S. concerned to investigate the case after lodging the F.I.R. That application was allowed by the Judicial Magistrate, Court No. 13, Basti vide order dated 22.05.2007, which was challenged by the accused persons (opposite parties no. 2 to 8 herein) in the Court of Sessions Judge, Basti by means of criminal revision no. 550 of 2007, which has been allowed vide impugned judgement dated 07.07.2007, whereby the order dated 22.05.2007 passed by the Judicial Magistrate, Basti regarding the registration of the F.I.R. and making investigation has been set-aside.
4.It is vehemently contended by the learned counsel for the revisionist that the impugned order passed by the learned Sessions Judge, Basti is wholly illegal, as the prospective accused against whom an order under Section 156(3) Cr.P.C. has been passed have no right to challenge that order in the revision or in the proceeding under Section 482 Cr.P.C. The contention of the learned counsel for the revisionist is that if F.I.R. in pursuance of the order passed under Section 156(3) Cr.P.C. is lodged, then the accused can invoke constitutional jurisdiction of the High Court under Article 226 of the Constitution of India to quash the F.I.R., but they cannot challenge the order of registration of the F.I.R. and investigation by filing revision against that order.
5.Having taking into consideration the submissions made by the learned counsel for the revisionist, I find force in his contention mentioned herein-above. This matter was considered by this Court in the case of Prof. Ram Naresh Chaudhary and another Vs. State of U.P. and others (2008 (60) ACC 476). In view of the law laid down in the judgement of that case, in instant case also, the accused persons (opposite parties no. 2 to 8 herein) against whom, an order under Section 156(3) Cr.P.C. was passed on 22.05.2007 by the Judicial Magistrate, Basti regarding the registration of the F.I.R. and making investigation, had no right to challenge that order in the revision and since the learned Sessions Judge, Basti had entertained and allowed the revision by means of impugned order, hence the said order being wholly illegal is liable to be set-aside.
6.In Para 9 of the case of Prof. Ram Naresh Chaudhary Vs. State of U.P. (supra), following observations have been made:-
"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."
7.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."
8.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.
9.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.
10. Again 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 in which, it was held that accused does not have any right to challenge an order passed under Section 156(3) Cr.P.C.
11. Relying upon the decision of 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."
12. For the reasons mentioned herein-above and in view of the law laid down in aforesaid cases, I am of the considered view that the accused persons (opposite parties no. 2 to 8) had no right to stop registration of F.I.R. and the revision filed by them against the order allowing the application under Section 156(3) Cr.P.C. is not legally maintainable.
13. Consequently, this revision is allowed. The impugned judgement and order dated 07.07.2007 passed by Sessions Judge, Basti is set-aside and criminal revision no. 550 of 2007 is hereby dismissed, being not legally maintainable.
Let a copy of this order be sent to the Judicial Magistrate, Court No. 13, Basti, who is directed to ensure that proper investigation is made after lodging the F.I.R. in pursuance of the order dated 22.05.2007 passed by him in criminal misc. case no. 43 of 2007.