# Ishwar Chand v. State of U.P. and others

- **Citation:** (2007) 1 ILRA 305
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-08-02
- **Case number:** Habeas Corpus Writ Petition No.66525 of 2005
- **Bench:** M.C. Jain, K.K. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ishwar-chand-v-state-of-u-p-and-others-40875
- **Pages:** 20

## Headnote

306 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Sri Arvind Tripathi
Sri A.K. Singh
A.G.A

National Security Act, 3 (2)-Detention
Order-passed on the allegations-broad
day light taking the girl-stripped her
naked-tearing her cloths-armed with fire
arm-required on hue and cry resulted
breach of peace-no interference.

## Text

_Characters 0–39,923 of 65,990. This is a partial read: ask again with offset=39923 for what follows._

1 All] Ishwar Chand V. State of U.P. and others
305
who has released the salary in favour of
respondent no.6 at the time of final
disposal of the writ petition.

18. As noticed herein above,
respondent no.6 has not been appointed in
accordance with the statutory provisions
applicable and therefore, also he has no
legal right to object to the legal
appointment of the petitioner who has
been
selected
in
accordance
with
Statutory provisions.

19. With regard to the second
objection this Court has no hesitation to
record
that
this
Court
has
every
jurisdiction to entertain the present writ
petition, which has been filed for ensuring
appointment being offered to a candidate
selected by the U.P. Secondary Education
Services Selection Board, at Allahabad, as
part of cause of action has arisen at
Allahabad.

20. In such circumstances both the
objections raised by learned counsel for
respondent n06 are hereby rejected.

21. From the aforesaid, it is apparent
that petitioner has a prima facie case in
his favour, an ad hoc appointee (who has
been appointed by an Authority having no
jurisdiction to offer such appointment)
must give way to the regularly selected
candidate.
The petitioner, is therefore, entitled to
following interim order:

22. The District Inspector of
Schools, Ambedkar Nagar who is present
in the Court today is directed to ensure
that the petitioner is permitted to join in
the institution as Lecturer (Psychology)
within a week from the date a certified
copy of this order is filed before him. This
appointment shall be subject to the final
orders to be passed in this petition.
Put up on 14th December, 2006 as
unlisted matter.

23. In order to avoid conflicting
judgments being passed in the writ
petitions filed by respondent no. 6
namely, Rajendra Prasad Verma before
the Lucknow Bench of this Court, being
Writ Petition No. 6482 (S/S) of 1999 and
Writ Petition No. 3920 (S/S) of 2006 and
the present writ petition filed before this
Court, it is desirable that The Hon'ble The
Chief Justice may consider the transfer of
the writ petitions filed before the
Lucknow Bench of this Court being Writ
Petition No. 6482 (S/S) of 1999 and Writ
Petition No. 3920 (S/S) of 2006 to the
Allahabad High Court and the same may
be tagged along with this writ petition.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.08.2006

BEFORE
THE HON'BLE M.C. JAIN, J.
THE HON'BLE K.K. MISRA, J.

Habeas Corpus Writ Petition No.66525 of
2005
Connected with
Habeas Corpus Writ Petition No.66528 of
2005

Pappu

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
I.M. Khan

Counsel for the Respondents:
Sri K.C. Sinha Addl. S.G. of India
306 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Sri Arvind Tripathi
Sri A.K. Singh
A.G.A

National Security Act, 3 (2)-Detention
Order-passed on the allegations-broad
day light taking the girl-stripped her
naked-tearing her cloths-armed with fire
arm-required on hue and cry resulted
breach of peace-no interference.
(Delivered by Hon'ble K.K. Misra, J.)

In both these writ petitions the
common impugned detention order dated
30.7.05 passed by District Magistrate,
Rampur, respondent no. 2, under section 3
(2) of the National Security Act is under
challenge.

The
ground
of
detention
are
contained in Annexure No. 1 to the writ
petition. It is stated therein that on
22.4.2005 at 10.15 a.m. a report was
lodged by the complainant Sunil son of
late Ram Saran that when he alongwith
his wife and his nieces, namely, Ms.
Poonam and Ms. Sundari entered his
house on return from temple, the
petitioner with his associates entered his
house armed with firearms and they took
with them his niece, namely, Ms.
Poonam. They stripped Ms. Poonam
naked, tearing her clothes. On raising
shouts by complainant Sunil and his
family
members,
many
neighbours
assembled. The petitioners and their
associates threw Miss Poonam naked
outside the house. Then the petitioner and
his associates ran away, firing. An F.I.R.
was registered as case crime No. 145/05
under section 452/354/509/323/506 I.P.C.
The incident had taken place in broad day
light. There was hue and cry and
atmosphere was exceedingly charged
which resulted in breach of public order.

Counter and rejoinder affidavits have
been exchanged.

We have heard Shri I.M. Khan,
learned counsel for the petitioners and Sri
Arvind Tripathi, learned A.G.A. No-body
has turned up for the Union of India in
petition no. 66528/05. But Shri A.K.
Singh argued for Union of India in
petition no.66525/05.

The main contention of the learned
counsel for the petitioners is that the
incident relied upon for passing the
impugned detention order related only to
the problem of law and order and it had
nothing to do with the maintenance of
public order.

On the other hand, Sri Arvind
Tripathi,
learned
A.G.A.
strongly
contended that due to the incident, there
was hue and cry in the locality and the
force was deployed in the locality for
maintenance of public order. In short, the
submission of the learned A.G.A. is that
the incident in question gave rise to
breach of public order and not of law and
order.

Any disorderly behaviour of a person
in the public or commission of a criminal
offence is bound to some extent affect the
peace prevailing in the locality and it may
also affect law and order but the same
need not always affect maintenance of
public order. The question whether a
person has only committed a breach of
law and order or has acted in a manner
likely to cause disturbance of the public
order, is a question of degree and the
extent of the reach of the act upon the
society.
The
present
incident
was
definitely one which adversely affected
public order.
1 All] Pappu V. State of U.P. and others
307

In the above circumstances, we find
that the incident on the basis of which the
present detention order was passed related
to question of public order. Consequently
the detention order passed by the District
Magistrate, Rampur does not suffer from
any illegality.

In the result, both the writ petitions
are dismissed.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED ALLAHABAD 17.10.2006
Before
THE HON'BLE VINOD PRASAD, J.

Criminal Revision No. 5729 of 2006

Chandan

...Revisionist
Versus
State of U.P. & another...Opposite Parties

Counsel for the Revisionist:
Sri. S.K. Parikh

Counsel for the Opposite. Parties:
A.G.A.

Code of Criminal Procedure-S-397(1)-
Revision against an order passed under
section156(3)-at pre cognizance stageNo
doubt
a
judicial
order
but
administrative in nature under Chapter
XII of the code-No opinion formed by
Magistrate against any body-No body is
within the meaning of accused-Question
of infringement of fundamental rights
does not arise-held neither revision nor
application under section 482 of the code
-maintainable
by
the
prospective
accused-general direction issued-

Held: para 20 & 23

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 to secure the
ends of justice it is a must 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.

Thus there was no opinion formed by the
Magistrate against any body and hence
no body was an accused and. hence
there does not arise any question of
infringment of any "Fundamental Right"
or"legal right" of any person.
From the discussions made above it is
clear that no revision is maintainable at
the instance of the accused against an
order
passed
under
section
156(3)
Cr.P.C."
Case Law discussed:
AIR 1994 SC-1349, 1994 SCC(Crl)-1172, AIR
1997 SC-610, 1997 (1)SCC-416, AIR 2004 SC7, AIR 1993 SC-1960, 1970(1) SCC-653, 1995
SCC(Crl)-1059, 2003(6) AWC-4986, 2000(10)
SCC-482, AIR 1958 SC-1986, 2004(5) AWC4956, 1998(8) SCC 1, 1980 SCC (Crl)-272,
1997(34) ACC-163. 1991(28) ACC-422, 2004
UPCR-242, JT 1994(4) SC-537, 2003 SCC(Crl)-
1305, 1963 ISCR-202, 1997(13) ACC-225,
1994 ACC-535, 2005 SCC(Crl)-242, 1980 CrCJ258, 1993 SCC(Crl)-36, 2002(44) ACC-143,
1997(34) ACC-687, 2000(46) ACC-1180, 1992
SCC(Crl)-426.

(Delivered by Hon'ble Vinod Prasad, J.)

This revision has been filed by
Chandan who is aggrieved by the, order
dated 31.8.2006 passed by Civil Judge
(Junior Division) Judicial Magistrate,
Chakia, Chandauli in Miscellaneous Case
308 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
No: Nil of 2006, Manoj Kumar Vs.
Chandan and anothers, under Section
156(3) Cr.P.C, P.S. Chakia, district
Chandauli. By the impugned order the
Magistrate concerned has ordered for
registration of the F.I.R. and investigation
in pursuance thereof in the crime by the
police, on the application under Section
156(3) Cr.P.C.filed by Manoj Kumar
(respondent no.2).

2. The facts giving rise to this
revision
are
that
on
5.9.2006
an
application under Section 156(3) Cr.P.C.
was filed by Manoj Kumar with the
allegations that his wife Smt. Usha Devi
was enticed away by Chandan (present
revisionist) and after exerting undue
influence
on
her
got
himself
photographed with her in objectionable
poses. His wife Smt., Usha Devi because
of shame could not inform the said fact to,
the family members. On 12.8.2006
Chandan,
(revisionist)
sent
those
photographs to the applicant Manoj
Kumar (respondent no.2) and started
blackmailing him for Rs.10000/-on the
pretext that in case the said amount is not
paid he will defame the couple by
publishing the said photographs in the
village. When the applicant Manoj Kumar
objected to the said conduct, revisionist
Chandan and his maternal uncle Ram Ji,
who is said to be a police constable,
threatened him with life and also abused
him filthily. Manoj Kumar wanted to
lodge
the
report
of
extortion
and
threatening but his report was not taken
down by the Officer-in-charge of the
police station. His application to the
Superintendent of Police, Chandauli, sent
through registered post on 17.8.2006 did
not yield any result; consequently, on
19.8.2006, Manoj Kumar, respondent
no.2 filed· an application under Section
156(3) Cr.P. C. before the concerned
Magistrate. Magistrate initially called for
a report from police and fixed 21.8:2006.
Subsequently, he again fixed 22.8.2006
and 25.8.2006. Ultimately on 31.8.2006
the Magistrate ordered that the application
filed
by
the
applicant
discloses
commission of a. cognizable offence and
therefore, it should be investigated as no
F.I.R. was already registered at the police
station. With the aforesaid observation he
directed the police to register the F.I.R.
and investigate the case and sent a copy of
the F.I.R. to him within seven days which
order is under challenge in this revision.

3. I have heard Sri C.K. Parikh,
learned counsel for the revisionist in
support of this revision and the learned
AGA in opposition.

4. At the very out set the question of
maintainability of this revision at the
instance of the revisionist, against whom
an order u/s 156 (3) Cr. P.C. was passed,
came up for consideration, as the learned
AGA raised the preliminary objection that
this revision by the revisionist who is a
proposed accused is not maintainable.

5.

Learned
counsel
for
the
revisionist
submitted
that
since
the
application u/s 156 (3) Cr. P.C. had been
filed against him and the order will
definitely affect him prejudicially he has
got a right to maintain the revision. He
further contended that after an order u/s
156 (3) is passed the police has got no
option but to register the FIR against him,
therefore, the revisionist have got a right
to challenge the said order passed by the
learned Magistrate in as much as his
fundamental right is jeopardized. He
further contended that the Magistrate
must hear the accused at the stage of 156
1 All] Chandan V. State of U.P. and another
309
(3) Cr. P.C. and therefore also the
impugned order deserves to be set aside.
He relied upon a reported judgment in
Ajai Malviya Vs State of U.P.2000 (4)
ACC 435.

6. Learned AGA on the other hand
contended that the Magistrate was not
obliged to hear, the accused at the stage of
156 (3) Cr. P.C. as he was exercising the
administrative power of control over the
police by passing a, judicial order. He
submitted that the contentions raised by
the learned counsel for the revisionists are
against the basic principles of criminal
law and section 156 (3) Cr. P.C. He
further submitted that Supreme Court had
laid down in many judgments that the
accused has no right of hearing, before
being summoned. He further submitted
that passing of an order U/S 156 (3)
Cr.P.C the Magistrate had only directed
the registration of the case and its
investigation and the accused has got no
right to challenge the aforesaid order of
registration of F.I.R. He can challenge the
FIR if it does not discloses commission of
a cognizable offence in a writ petition. He
further submitted that section 397 and 401
Cr.P:C. is not at all applicable against
such an interlocutory order of registration
and investigation and this revision is not
maintainable
and
deserves
to
be
dismissed; He also submitted that Ajai
Malviya's case (Supra) does not laid down
good law and is per-incurium being
contrary to Section 397(1) &(2) Cr.P.C.
and the law laid down by Apex Court that
order under Section 156(3) Cr.P.C. is a
pre-cognizance order.

7. I have considered the submissions
raised by both the parties. The bone of
contention in this revision no longer
remains res-integra. It has come up
before me in criminal Miscellaneous
Application No. 4670 of 2006, Rakesh
Puri and another Vs. State of U.P. and
another. In that decision it has been held
as follows-:

"Section 156 (3) Cr. P.C. falls under
Chapter XII, which deals with the power
of police to register and investigate a
cognizable offence u/s 154 (1) and 156
(1) Cr. P.C. The law has mandated the
police to register all the information's
whether oral or in writing if it discloses
the commission of a cognizable offence in
the form and in the manner prescribed by
the respective State Government and to
obtain the signature of the informant after
its registration. Sub clause (3) of section
154 Cr.P.C. provides that if the Officer
Incharge of the Police Station refuses to
register such an information which
discloses the commission of a cognizable
offence the aggrieved person may send,
through post, the substance of such
information in writing to the concerned
Superintendent of Police who will either
investigate into the matter himself or get
it investigated through some officer if it
discloses the commission of a cognizable
offence. It further provides that deputed
officer
after
such
entrustment
of
investigation by the Superintendent of
Police will have all the powers of the
Officer Incharge of Police Station as is
provided to him under the law. Thus
section 154 (3) Cr.P.C. is the power
conferred on Superintendent of Police to
get the FIR registered in case the same is
refused by the officer in charge of the
concerned police station when cognizable
offence is disclosed by such information.
Section 156(1) in conjunction with
section 157(1) Cr.P.C. provides that every
cognizable offence must be investigated if
the officer in charge of police station has
310 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
got "reason to suspect" that cognizable
offence is disclosed after registration of
the FIR. Thus the scheme of the Code
from section 154 to section 157 Cr.P.C.
makes is clear that all information
disclosing commission of cognizable
offence must be registered as a FIR at the
police station and the officer in charge of
a police station has got no right to refuse
it's registration. In case of refusal to
register such an information as FIR the
officer in charge of police station is guilty
of
flouting
the
mandate
of
law.
Subsequently after it's registration if the
officer in charge of the police station has
"reason to suspect" that cognizable
offence is disclosed by the said registered
FIR he must investigate it. This aspect of
the matter has been dealt, exhaustively, by
the Apex Court in the case of State of
Haryana And Others versus Bhajan Lal
And Others;1992 SCC(Cr.) 426. In paras
30,31 and 33 the apex court has laid down
that:-

"30. The legal mandate enshrined in
section 154(1) is that every information
relating
to
the
commission
of
a
"cognizable offence" (as defined under
section2(c) of the code) if given orally (in
which case it is to be reduced into
writing) or in writing to "an officer in
charge of a police station" (within the
meaning of section 2 (o) of the code) and
signed by the informant should be entered
in a book to be kept by such officer in
such form as, the state government may
prescribe which form is commonly called
as " First Information report" and which
act of entering the information in the said
form is known as registration of a crime
or a case.

31. At the stage of registration of a crime
or a case on the basis of the information
disclosing
a
cognizable'
offence
in
compliance with the mandate of section
154(1) of the code the concerned police
officer can not embark upon an inquiry as
to whether the information laid by the
informant is reliable and genuine or
otherwise and refuse to register a case on
the ground that the information is not
reliable or credible. On the other hand,
the officer in charge of a police station is
statutorily obliged to register a case and
then to proceed with the investigation if
he has reason to suspect the commission
of an offence, which he is empowered
under section 156 of the code to
investigate subject to the proviso to
section 157... ... ...In case, an officer in
charge of a police station refuses to
exercise the jurisdiction vested in him and
to register a case on the information of a
cognizable offence reported and thereby
violates the statutory duty cast upon him,
the person aggrieved by such refusal can
send the substance of the information in
writing and by post to the superintendent
of police concerned who if satisfied that
the
information
forwarded
to
him
discloses a cognizable offence, ,should
either investigate the case himself or
direct an investigation to be made by any
police officer subordinate, to him in the
manner provided by sub section(3) of
section 154 of the Code.
.............................................
.............................................
33. It is, therefore, manifestly clear that if
any information disclosing a cognizable
offence is laid before an officer-in charge
of
a
police
station
satisfying
the
requirements of section 154 (1) of the
code, the said police officer has no other
option except to enter the substance
thereof in ,the prescribed form, that is to
say, to register a case on the basis of such
information."
1 All] Chandan V. State of U.P. and another
311
(Under line Emphasis Supplied). "

Further it has been held in the
aforesaid judgment (Rakesh Puri) that:-

8 "Section 156 (3) provides that the
Magistrate
"may
order
such
an
investigation
as
mentioned
above".
These words clearly indicate and are
relatable to an investigation, which is to
be conducted by the police under section
156(1) Cr.P.C. The purview of the power
of the Magistrate conferred under section
156(3) Cr.P.C. does not travel beyond the
said scope. It is limited in nature and the,
Magistrate under that subsection, is
empowered only to look to the application
or complaint only to, find out as to
whether a cognizable offence is disclosed
or not? Let me make it clear that
registration of a FIR is quite different than
the investigation of the same. It has been,
so held in the case of Bhajan Lal (Supra)
by the apex court. In para 41 of the said
judgment the apex court has held:-

"We shall now examine as to what
are the requirements to be satisfied by an
officer in charge of a police station before
he enters into the realm of investigation of
a cognizable offence after the stage of a
registration of the , offence under section
154(1). We have already found that the
police have under section 154(1) of the
code a statutory duty to register a
cognizable offence and thereafter under
section 156(1) a statutory right to
investigate any cognizable case without
requiring sanction of a Magistrate.
However the said statutory right to
investigate a cognizable offence is ,
subject to the fulfillment of pre- requisite
condition contemplated in section 157(1).
The condition is that the officer in charge
of the police station before proceeding to
investigate the facts and circumstances of
the case should have " reason to
suspect", the, commission of an offence
which he is empowered under section 156
to investigate. (Under line emphasis
supplied)."

In para 48 and 49 of the same judgment
the apex court has reiterated the same
view and has concluded the (this) aspect
thus:-

"Resultantly, the condition precedent
to the commencement of the investigation
under section 157(1) Cr.P.C. of the code
is the existence of the reason to suspect
the commission of a cognizable offence
which has to be, prima facie, disclosed by
the
allegations
made
in
the
first
information report laid before the police
officer under section 154(1).

9. In the case of Madhu Bala versus
Suresh Kumar and others; 1998 SCC(
Cr.) 111 it has been held by' the Supreme
Court in para 10 thereof:-

"The provisions of the code therefore
do not in any way stand in the way of a
Magistrate to direct the police to register
a case at the police station and then
investigate into the same. In our opinion
when an order for investigation under
section 156(3) of the code is to be made
the proper direction to the police would
be " to register a case at the police station
treating the complaint as the first
information report and investigate into
the same". (emphasis supplied).
It has been held by the apex court in the
case of Central Bureau Of Investigation
through S.P .Jaipur versus State of
Rajasthan and another:2001 SCC(Cr)
524 as follows:- .s
312 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
"What is contained in sub- section
(3) of section 156 is the power to order
the investigation referred to in sub-
section (1) because the words " order
such
an
investigation
as
above
mentioned " in sub- section (3) are in
mistakably clear as referring to the other
sub- section. Thus the power is to order
an "officer in charge of a police station"
to conduct investigation (Emphasis mine
and Supplied)"

It has further been laid down in the said
case Rakesh Puri (supra) that:

"The primary responsibility for
conducting investigation into offences in
cognizable cases vests with such police
officer ,Section 156(3) of the code
empowers a Magistrate to direct such
officer in charge of the Police station to
investigate any cognizable case over
which such· Magistrate. has jurisdiction.
"(Emphasis mine and Supplied)

In para 16 thereof the apex court has laid
down the law, in, respect of the power of
Magistrate under section 156(3)Cr.P.C:
,as, follows:

"We, therefore reiterate·, that the
magisterial power can not be stretched
under the said sub-section beyond
directing the officer in charge of a police
station to conduct the investigation ".
(Emphasis mine and supplied)

The
above·
quoted
passages,
unequivocally brings out the ambit of
power of Magistrate under section 156(3)
Cr.P.C. Under the said section the
Magistrate does not take the cognizance
of the offence himself and the power is
wielded by him, at the pre cognizance
stage falling under chapter XII relating to
the power of the police to investigate into
the cognizable offence. Thus at the stage
of section 156(3) Cr.P.C. a person against
whom an application under the said·
section is filed does not come into the
picture at all to participate in the
proceedings. 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 got no right to
participate
in
the
said
ex-parte
proceeding. If permitted will amount to
killing of foetus of investigation in the
womb when it was not there at all. Such a
power has not been conferred under the
law on the prospective accused. See Hari
Raj Singh versus State of U.P 2000 (46)
ACC 1180;Brijesh Versus State of U.P.
and others 1997 (34) ACC 687; Father
Thomas versus State of U.P. and others
2002 (44) ACC 143. Further at the stage
of section 156(3) Cr.P.C. which is a pre
cognizance stage there is no body who is
an accused. The, character of being an
accused will be implanted on a person
only by registration of the FIR by the
police or by taking cognizance by the
Magistrate of the offence and summoning
of the person as an accused under section
204 Cr.P.C. Thus no person can be
bestowed with a right to challenge an
order for registration and investigation of
offence passed under section 156(3)
Cr.P.C. when he is not even an accused."

It has further been held that in that
judgment:-

"Cr.P.C. does not permit the accused
to challenge any order at every stage of
proceedings. There are certain stages in
which even though judicial orders are
passed but the person aggrieved has no
1 All] Chandan V. State of U.P. and another
313
right to challenge the order even on the
pretext that his Fundamental Rights are
being infringed. As exemplars, I refer,
that an accused does not have a right to
challenge the registration of a complaint
and taking cognizance on it by the
Magistrate, recording of statements under
section 200 and 202 Cr.P.C., issuing of
bailable
and
non-bailable
warrants,
registration
of
charge
sheet
after
investigation under section 173 Cr.P.C.,
granting of adjournments, exemption of
accused, fixing dates for evidences,
recording of statement under section 313
Cr.P.C., directing for further investigation
by the police under section 173(8) Cr.P.C.
etc. All these types of orders and many
such other orders are all judicial orders
passed in a judicial proceeding but they
are not subjected to the revisional powers
of the courts under section 397(1) Cr.P.C.
at the instance of the accused. If an
accused does not have a right to
participate in a proceeding at the stage of
section
156(3)
Cr.P.C.
it
is
incomprehensible that he has power to
challenge order passed under that section
more so order for registration of FIR
which is different from investigating the
offences, if any, disclosed by the said
FIR.·In the case of Bhajan Lal (Supra)
while laying down the guidelines for
quashing of the FIR the apex court has not
conferred the power on the accused to
challenge the registration of FIR against
him. This matter has come up before the
apex court in the case of Janta Dal versus
H.S.Chowdhary.and
others
1993
SCC(Cr) 36 (known as Bofor's case)
where the apex court denounced the
practice of lower court in issuing of notice
on the registration. of FIR under section
397(1) or 482 Cr.P.C. In the said case the
revisional court because of various
illegalities had taken suo motu cognizance
and had issued notice to C.B.I. to show
cause as to why the FIR and the
proceeding subsequent thereto be not.
quashed. The apex court in the concluding
part of it's judgment quashed the order of
revisional court under section 397 and
401 read with section 482 Cr.P.C. taking
suo motu cognizance. In the same case
(the)Apex
Court
has
approved
the
judgment of Kekoo J.Maneckji versus
Union Of India;1980 Cr.L.J.258(Bom)
in para 156 thereof in which it has been
held as follows:-

"This is admittedly a stage where the
prosecuting agency is still investigating
the offence and collecting evidence
against the accused The petitioner, who is
accused, has therefore, no locus standi as
this stage to question the manner in which
the evidence should be collected. The law
of this country does not give any right to
the accused to control, or interfere with,
the collection of evidence".

10. It has been further held in the
said case Rakesh Puri (Supra) that Ajai
Malviya Vs. State of U.P. 2000(41)ACC
435 does not lay down correct law in the
following words:

"1 have gone through the said
judgment. With profound respect to the
Hon'ble· Judges in the said case and with
utmost·humility and humbleness at my
command I find myself unable to agree
with said judgment in so far as the
maintainability of revision at the instance
of the accused against the order passed
under section 156(3) Cr.P.C. is concerned
in as much as the said judgment is not
only against the statutory provision of
section 397 (1) and (2) Cr.P.C. which
escaped the notice of the aforesaid
Division Bench but also because it is
against the very spirit of the provision of
156(3) Cr.P.C. and law laid down by the
314 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
apex court referred to above which is
binding
under
Article
141
of
the
Constitution Of India and is the law
declared. Let me list the reasons for my
disagreement. Firstly, Ajai Malviya's case
(Supra) was decided in a writ jurisdiction
under Article 226 of The Constitution Of
India
where
the
infringement
of
Fundamental Rights was alleged on the
ground that no offence is disclosed in the
FIR already registered. (Emphasis Mine);
The prayer made in the said writ petition
is mentioned in the opening part of the
said judgment as follows:-

"The first information report dated
6.8.1998 on the basis of which case crime
No.743 of 1998 under section 406/420IPC
has been registered at police station
Chakeri, district Kanpur Nagar is sought
to be quashed by means of this writ
petition
under
Article
226
of
the
Constitution. A direction not to arrest the
petitioner in the case aforestated during
the course of investigation has also been
sought besides the relief of certiorari. "

11. Thus the petitioner in that, case
was
seeking
an
extra
ordinary
Constitutional remedy conferred on him
under Article 226 of The Constitution Of
India. He was not seeking a legal.
Remedy provided under Cr.P.C. To avail
(of) a legal remedy it has to be
specifically provided for by the concerned
Statute and such a remedy is governed by
the provisions contained therein. If a
statute prohibits the claimed legal remedy
then the aggrieved person cannot avail of
it. Secondly, the Division Bench in that
case
completely
over
looked
the
provisions of section 397(1)& (2) Cr.P.C
especially sub section (2) thereof which
prohibits maintainability of a revision in
cases
of
interlocutory
orders.
The
aforesaid Division bench did not at all
considered
the
said
section
before
recording a finding that the revision is
maintainable against the order passed
under
section
156(3)
Cr.P.C.
it
concentrated only on one aspect of the
matter and that was that the order passed
under section 156 (3) Cr.P.C. is a judicial
order and hence amenable to revisional
jurisdiction. This view by the said
Division Bench, with profound respect, is
indirect conflict with section 397 (2)
Cr.P.C. in as much as all interlocutory
orders are judicial orders passed in a
judicial proceeding but they all are not
subjected to revisional powers of the
courts under section 397(1) Cr.P.C.
Registration of a complaint, Ordering for
further investigation under section 173 (8)
Cr.P.C by a Magistrate after receiving a
report from the police under section
173(1), registration of charge sheet
submitted by the police under section
173(2), issuance of non bailable warrant,
issuance of process under section 82-83
Cr.P.C., recalling a witness, granting bail
and cancellation thereof asking the
complainant to produce evidence under
sections 200 and 202Cr:P.C. granting of
adjournments, exemptions of accused
giving dates in the cases, order for
framing of charge, recording of statement
under section 313 Cr.P.C. fixing dates for
evidences, order for committal of cases to
the court of Session's and many more
such orders are all judicial orders passed
in a judicial proceeding but they are not
subjected to revisional powers under
section 397/401 Cr.P.C. and in fact are
barred by Section 397(2) Cr.P.C. This
very important aspect of the matter which
was sine qua non for deciding the
question of maintainability of a revision at
the instance of accused against the order
passed under section 156(3) Cr.P.C. and
1 All] Chandan V. State of U.P. and another
315
was
relevant
and
germane
to
the
controversy was not considered at all by
the said Division Bench. Let me point out
here that under section 156(3) Cr.P.C.
there was no proceeding between the
litigating parties and no such proceeding
was finalised. No inquiry or trial was held
between two parties. Under that section it
is only an administrative power which is
being exercised by the Magistrate ex parte
being superior authority to direct the
police to register and investigate the
offence. Such an order is pure and simple
interlocutory order barred under section
397(2) Cr.P.C. from being revised.
Thirdly, the said Division Bench also
failed
to
notice
that
the
word
"Proceeding" mentioned under section
397 (I) Cr.P.C. does not embraces within
it's purview all proceedings even exparte
proceeding in which the other side even
does not have the right to participate and
to be heard. At the stage of section 156
(3) Cr.P.C. the prospective accused
cannot be .heard at all and once he cannot
be heard how can he challenge the said
order. The word "Proceeding" under
section 397 (1) Cr.P.C. means the
"Proceedings" which is final in nature and
in which both the sides had got a right to
be heard whether they have in fact been
heard or not. It is because of this reason
that recently the Apex court in the case of
Subarmaniyam
Sethuraman
versus
State of Maharastra; 2005 SCC (Cr)
242 has held that even an order of
summoning of an, accused is not
amenable, to revisional jurisdiction. The
same view was expressed by this court in
the case of Atul Kumar Mathur and others
versus State of UP ,and others: 1994ACC
535. Thus the accused who does not have
a legal right to participate in the
proceeding under section 156(3) Cr.P.C.
certainly can not be conferred with the
right to challenge the order passed under
that section. The Apex Court has held that
the accused has got such a right of
challenge
only
after
he
has
been
summoned as an accused in the case by
the trial court to face the charge after the
charge sheet is submitted against him. See
Janta
Dal
versus
H.S.
Chowdhary(Supra).The apex court has
held in many other decisions that the
accused has no right to be heard before he
is summoned. In Nagawwa versus
V.S.Konjalgi 1976 (13) ACC 225 The
apex court has observed thus:-

"in proceeding under section 202 the
accused has' got absolutely no locus
standi and is not entitled to be heard on
the question whether the process should
be issued against him or not." ,

12. In V. Panchal versus D.D
Ghadigaonkar:AIR (1961) ISCR 1 it
was also held by the apex court that:-
"The section does not say that a
regular trial of adjudging the truth or
otherwise of the person complained
against should take place at that stage,
for such a person can be called upon to
answer the allegation made against him
only when a process has been issued.
"(Emphasis Mine)

13. In the case of Chandra Deo
Singh
versus
Prakash
Chandra
Bose;AIR (1963) ISCR 202 it was
observed by the apex court:-

"Permitting the accused person, to
intervene during the inquiry would
frustrate its very object and that is why
legislature
has
made
no
specific
provision, permitting an accused person
to "take part in the inquiry"
316 INDIAN LAW REPORTS ALLAHABAD SERIES [2007

14. In the case of Superintendent
Of Police. C.B.I. And Others Versus
Tapan Kumar Singh: 2003 SCC (Cr)
1305 dealing with registration of FIR by
the police it has been held by the apex
court:-

"The true test is whether the
information furnished provides a reason
to suspect the commission of an offence,
which the police officer concerned is
empowered under section 156 of the Code
to investigate. 1f it does, he has no option
but to record the information and proceed
to investigate the case either himself or
depute any other competent officer to
conduct the investigation. The question as
to whether the report is true whether it
discloses
full
details
regarding
the
manner
of
occurrence
whether
the
accused, is named . and whether there is
sufficient
evidence
to
support
the
allegation, are all matters which are alien
to the consideration. of the question
whether
the
report
discloses,
the
commission of cognizable offence. Even if
the information does not give, full details
regarding these matters the investigating
officer is not absolved of his duty to
investigate the case and discover the true
facts, if he can. "(Emphasis Mine)

15. It is under such power of police
that the order under section 156(3) is to be
passed by the Magistrate when he is
approached by the aggrieved person. It is
the duty of the Magistrate to get the
mandate of law observed by the police
and not to get flouted by it. Therefore the
natural corollary is that if an application
or a complaint disclosing commission of a
cognizable offence is filed and the
Magistrate is prayed for a direction to
order for an investigation he has to order
for such an investigation and he does not
have any other option. Reference is to be
made to the following judgments of this
court:-
Bahadur Singh Versus State of U.P;
2005 (51) ACC 901 and Smt. Roopa
Versus State of U.P. and others: 2004
U.P. Cr. R 242.s

16. In the case of Samardha
Sreepada
Vallabha
Venkata
Vishwadaha Maharai versus State of
Andhra Pradesh : JT 1999 (4),SC 537 it
has been held by the apex court:-

"There is nothing in section 173(8)
to suggest that the court is obliged to hear
the accused before any such direction is
made. Casting of such obligation on the
court ',would only result in encumbering
the court with the burden of searching for
all the potential accused to be afforded
with the 'opportunity of being heard. "

17. In the case of Pratap versus
State of UP: 1991(28)ACC 422 it was
held by Hon'ble G.P. Mathur J. as his
lordship then was as follows :-

"Neither under the code of Criminal
Procedure nor under any principle of
natural justice the Magistrate is required
to issue notice or afford an opportunity of
hearing to an. accused in a case where
the police has submitted final report but
on consideration of material on record
the Magistrate cognizance of the offence
in exercise of his power under section 190
(1)(b) and direct issue of process to the
accused. The code does not contemplate
holding of two trials one before issue of
process and the other after the process is
issued " (emphasis Mine)

18. The said observations in Pratap'
s case has been quoted with approval in
the case of Karan Singh versus State
1 All] Chandan V. State of U.P. and another
317
:1997(34)ACC 163 where in it has been
observed by this court as follows:-

"Where an order is made under
Section
156(3)Cr.P.C.
Directing
the
police to register FIR and investigate.