# Revisionist v. State Of U.P. and another

- **Citation:** (2010) 3 ILRA 1397
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-12-22
- **Bench:** Amar Saran, A.K. Roopanwal, Surendra Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/revisionist-v-state-of-u-p-and-another-41817
- **Pages:** 18

## Headnote

Code of Criminal Procedure-Section 397
(2) Revision against order under Section156(3)-order passed by Magistrate to
Register and investigate the case-an
interlocutory
order-Revision
against
that-held-not maintainable-view taken
otherwise in Ajay Malviya case reported
in 2004(41) ACC 435-not correct.
1398 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Held: Para 64 and 65

In this view of the matter, the Opinion of
the Full bench on the three questions
posed is:

A. 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 not open to revision at the
instance of a person against whom neither
cognizance has been taken nor any
process issued.

B. An order made under Section 156(3)
Cr.P.C is an interlocutory order and remedy
of revision against such order is barred
under sub-section (2) of Section 397 of the
Code of Criminal Procedure, 1973.

C. The view expressed by a Division Bench
of this Court in the case of Ajay Malviya Vs.
State of U.P and others reported in
2000(41) ACC 435 that as an order made
under Section 156(3) of the Code of
Criminal
Procedure
is
amenable
to
revision, and no writ petition for quashing
an F.I.R registered on the basis of the
order will be maintainable, is not correct.
Case law discussed:
2000 (41) ACC 435, AIR 2001 SC 571,
(paragraphs 7, 8 and 9), AIR 1976(13) ACC 225
(SC), AIR (1961) ISCR 1, AIR (1963) I.S.C.R 202,
1997 (35) ACC 501, JT 1999 (8) SC 170, 1991
(28) ACC 422, 2001 (1) ACC 342, 1991 (28) ACC
422, 2000 Cri. L.J. 2738, JT 1999 (4) SC 537,
AIR 1977 SC 93, 1985 (22) ACC 246 (SC), 1997
(34) ACC 163, 2009 Cri. L.J 1683, 2007 (57) ACC
508: (2007 (1) ALJ (NOC) 7 (All.), 2008 Cri.L.J
2556, 2007 (57 ACC 488, Rakesh Puri v. State
(2007 (1) ALJ 169),JT 1999 SC 145, (2009) 1
SCC (Cri) 801, AIR 1977 SC 2185, AIR 1976 SC
1672, 2008 Cri.L.J 1515, 2007 (57) ACC 241,
[(2004) 4 SCC 129].

## Text

_Characters 0–39,904 of 55,937. This is a partial read: ask again with offset=39904 for what follows._

3 All] Father Thomas V. State of U.P. and another
1397
reversal,
modification
or
merely
affirmation.

14. The same view has again been
reiterated by the Hon'ble Supreme Court
in the case of Ramnik Vallabhdas
Madhvani
and
others
Vs.
Tarben
Pravinlal Madhvani - 2004 (1) SCC 497,
wherein it has been held that disposal of
special leave petition against judgment of
the High Court does not mean that the
said judgment is affirmed by such
dismissal. The order on a special leave
petition at the admission stage also does
not operate as res-judicata.

15. From the pronouncement of the
Hon'ble Apex Court, it is clear that
dismissal at the stage of special leave by
non-speaking order does not constitute
res-judicata and does not culminate in
merger of the impugned decision and
hence it would not by itself preclude the
aggrieved party from invoking review
jurisdiction. The Hon'ble Apex Court has
clarified that rejection of special leave
petition without notice even if the order is
reasoned or speaking also does not
culminate in merger of the impugned
decision. In the light of the above ratio
laid down by the Hon'ble Apex Court, the
order passed in special leave petition
being an order of dismissal simplicitor in
as much as the Hon'ble Apex Court
simply refused to grant leave to convert
petition into appeal hence the doctrine of
merger is not attracted for application.

16. In view of the above facts and
discussions and the settled law on the
subject, the dispute in the present writ
petition clearly falls within the territorial
jurisdiction of Lucknow Bench of this
Court hence the writ petition was wrongly
entertained and disposed of by this Court.

17. In view of the above, the
judgment and order dated 1.5.2007 is
liable to be recalled and is hereby
recalled. The writ petition stands restored
to its original number. The office is
directed to remit the record of this case to
the Lucknow Bench of this Court for
disposal.
---------
REVISIONAL JURISDICTIONAL
CRIMINAL SIDE
DATED: ALLAHABAD 22.12.2010

BEFORE
THE HON'BLE AMAR SARAN, J.
THE HON'BLE A.K. ROOPANWAL, J.
THE HON'BLE SURENDRA SINGH, J.

Criminal Revision No. - 1640 of 2001

Father Thomas

 ...Revisionist
Versus
State Of U.P. and another ...Opposite Party

Counsel for the Revisionist:
Sri Samit Gopal
Sri K.D. Tewari
Sri M.K. Shukla
Sri P.R. Maurya
Sri Rajiv Sisodiya
Sri S.S. Chaturvedi
Sri Patanjali Mishra
Sri Dileep Gupta
Sri D.S. Mishra
Sri Gopal S.Chaturvedi

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

Code of Criminal Procedure-Section 397
(2) Revision against order under Section156(3)-order passed by Magistrate to
Register and investigate the case-an
interlocutory
order-Revision
against
that-held-not maintainable-view taken
otherwise in Ajay Malviya case reported
in 2004(41) ACC 435-not correct.
1398 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Held: Para 64 and 65

In this view of the matter, the Opinion of
the Full bench on the three questions
posed is:

A. 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 not open to revision at the
instance of a person against whom neither
cognizance has been taken nor any
process issued.

B. An order made under Section 156(3)
Cr.P.C is an interlocutory order and remedy
of revision against such order is barred
under sub-section (2) of Section 397 of the
Code of Criminal Procedure, 1973.

C. The view expressed by a Division Bench
of this Court in the case of Ajay Malviya Vs.
State of U.P and others reported in
2000(41) ACC 435 that as an order made
under Section 156(3) of the Code of
Criminal
Procedure
is
amenable
to
revision, and no writ petition for quashing
an F.I.R registered on the basis of the
order will be maintainable, is not correct.
Case law discussed:
2000 (41) ACC 435, AIR 2001 SC 571,
(paragraphs 7, 8 and 9), AIR 1976(13) ACC 225
(SC), AIR (1961) ISCR 1, AIR (1963) I.S.C.R 202,
1997 (35) ACC 501, JT 1999 (8) SC 170, 1991
(28) ACC 422, 2001 (1) ACC 342, 1991 (28) ACC
422, 2000 Cri. L.J. 2738, JT 1999 (4) SC 537,
AIR 1977 SC 93, 1985 (22) ACC 246 (SC), 1997
(34) ACC 163, 2009 Cri. L.J 1683, 2007 (57) ACC
508: (2007 (1) ALJ (NOC) 7 (All.), 2008 Cri.L.J
2556, 2007 (57 ACC 488, Rakesh Puri v. State
(2007 (1) ALJ 169),JT 1999 SC 145, (2009) 1
SCC (Cri) 801, AIR 1977 SC 2185, AIR 1976 SC
1672, 2008 Cri.L.J 1515, 2007 (57) ACC 241,
[(2004) 4 SCC 129].

(Delivered by Hon'ble Amar Saran, J.)

1. We have heard Sri. G.S.
Chaturvedi Senior Advocate assisted by
Sri Samit Gopal, Sri D.S. Mishra and
Sri Dileep Gupta Advocates for the
private parties and Sri Patanjali Mishra,
A.G.A., Sri Neeraj Verma, A.G.A., and
Sri
D.R.
Chaudhari,
Governemnt
Advocate for the State of U.P. Written
arguments and case law were filed by
the State. However inspite of time being
allowed, no written arguments or case
law were filed by the private counsel,
except Sri G.S. Chaturvedi, who had
filed some case law in 2008 in the
leading petition, Crl. Revn. No. 1640 of
2000 on behalf of Father Thomas, and
has
also
supplied
us
with
some
additional photocopies of relevant case
law.

2. This Full Bench was constituted
after an order dated 28.9.01 was passed
by the Single Judge (Hon. J.C. Gupta,
J), who was examining the power of the
Court in a Criminal Revision to question
an order of the Magistrate issuing a
direction under section 156(3) of the
Code of Criminal Procedure (hereafter
'Cr.P.C' or 'the Code') to the police to
register an FIR and to investigate the
same.

3. The Single Judge was of the
view that as the accused has no locus
standi before an order is passed
summoning the accused, and also as the
order directing investigation is purely
interlocutory in nature, in view of the
statutory bar contained in section 397(2)
of the Code, the said order was not
revisable.

4. However, as it had been held in
Ajay Malviya vs. State of U.P and
others, reported in 2000(41) ACC 435
that as an order under Section 156(3)
Cr.P.C is a judicial order, hence any
FIR registered on its basis could not be
challenged by means of a writ petition.
3 All] Father Thomas V. State of U.P. and another
1399
Dissenting from this view the Single
Judge without disputing the position
that an order under section 156(3) of the
Code was a judicial order, observed that
the said order was an interlocutory
order, which could not be challenged by
a prospective accused who had no locus
standi at the stage of investigation,
hence a Criminal Revision was not
maintainable for challenging the said
order. In this background the Single
Judge
raised
doubts
about
the
correctness of the decision of the
division bench in Ajay Malviya which
based its conclusions on the position
that as an order under section 156(3)
was a judicial order, hence it was ipso
facto revisable, and therefore no FIR
pursuant to such an order, could be
challenged by means of a criminal writ.
The learned single judge thereupon
vacated all the stay orders granted in the
connected Criminal Revisions, which
are before us, and formulated the
following
three
questions
for
consideration by a larger bench, which
are now being examined by the present
Full Bench.

5. 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 at the instance of a
person
against
whom
neither
cognizance has been taken nor any
process issued?

B. Whether an order made under
Section
156(3)
Cr.P.C
is
an
interlocutory order and remedy of
revision against such order is barred
under sub-section (2) of Section 397 of
the Code of Criminal Procedure, 1973?

C. Whether the view expressed by a
Division Bench of this Court in the case
of Ajay Malviya Vs. State of U.P and
others reported in 2000(41) ACC 435
that as an order made under Section
156(3)
of
the
Code
of
Criminal
Procedure is amenable to revision, no
writ petition for quashing an F.I.R
registered on the basis of the order will
be maintainable, is correct?

Opinion of the bench on the three
issues

A. Locus standi of a prospective
accused
against
whom
neither
cognizance
has
been
taken
nor
process issued, to challenge an order
under Section 156(3) Cr.P.C in a
Criminal Revision.

6. Before examining any of the
questions posed in this case, it would be
necessary to reproduce the words of
section 156 which falls in Chapter XII
of the Code.

7. 156. Police officer's powers to
investigate cognizable cases.- (1) Any
officer in charge of a police station
may, without the order of a Magistrate,
investigate any cognizable case which a
Court having jurisdiction over the local
area within the limits of such station
would have power to inquire into or try
under the provisions of Chapter XIII.

(2) No proceeding of a police
officer in any such case shall at any
stage be called in question on the
ground that the case was one which
such officer was not empowered under
this section to investigate.
1400 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

(3) Any Magistrate empowered
under Section 190 may order such an
investigation as above mentioned.

8. As pointed out in Suresh Chand
Jain v State of M.P. & Ors., AIR 2001
SC 571, (paragraphs 7, 8 and 9) that
there is a difference in the position of a
prospective accused against whom an
order is made under section 156(3) of
the Code before cognizance is taken by
the Magistrate, and an accused against
whom investigation has been directed
under section 202(1) of the Code.
Although the nature of both the
investigations is the same, but the
former investigation is carried out by
the police, essentially under Chapter XII
of
the
Code
which
deals
with:
"Information to the Police and Their
Powers to Investigate." The police
officer-in-charge of the police station
has the same powers for carrying out an
investigation
under
section
156(1),
without orders of the Magistrate as the
Magistrate can direct under section 156
(3) of the Code. Section 154 (1) of the
Code prescribes the steps to be taken on
receipt of a report of a cognizable
offence by such a police officer. 154(3)
gives powers to the Superintendent to
issue appropriate directions requiring a
station officer to conduct investigation
into a cognizable offence. This power is
parallel to the power of the Magistrate
to issue a similar direction to the Station
officer under section 156(3) of the
Code. The investigation culminates with
the submission of the report by the
police under section 173 of the Code.
The
post-cognizance
investigation
directed by the Magistrate under section
202(1) although it is of a limited nature
at the stage of inquiry and is carried out
mainly for helping the Magistrate
decide whether or not there is sufficient
ground for him to proceed further, but it
is an investigation which is carried out
on directions of the police after
cognizance has been taken by the
Magistrate
on
a
complaint
under
sections 190(1)(a) and after examination
of the complainant under section 200 of
the Code.

9. For showing that a prospective
accused has no right of being heard
before process is issued or cognizance is
taken, and therefore he cannot challenge
the order directing investigation under
section 156(3) Cr.P.C. in a criminal
revision, the learned Single Judge has
placed
reliance
on
the
following
decisions of the Apex Court which
speak of the absence of any right of an
accused to intervene even in an inquiry
under section 202 of the Code, which is
conducted after cognizance has been
taken, under section 190 (1)(a) and 200
of the Code:

10. In Smt. Nagawwa v. V.S.
Konjalgi, AIR 1976(13) ACC 225 (SC),
V.V. Panchal v. D.D. Ghadigaonkar,
AIR (1961) ISCR 1, Chandra Deo Singh
v. Prakash Chandra Bose, AIR (1963)
I.S.C.R 202, Mansukh Lal V. Chauhan
v. State of Gujarat, 1997 (35) ACC 501
(SC) and C.B.I. v. V.K. Sahgal &
Others, JT 1999 (8) SC 170 it has been
held that the scope of enquiry under
section 202 of the Code is extremely
limited, and it is only meant for
adjudging whether prima facie on the
basis of the intrinsic reliability of the
material placed by the complainant, a
case for issuing process against the
accused was made out. The accused at
this stage has a right only to remain
personally present or through his agent
3 All] Father Thomas V. State of U.P. and another
1401
and to be informed about what is going
on, but he has no right to participate in
the proceedings. At this stage the
defence of the accused is not to be
considered. Sufficiency of the material
for conviction is beyond the scope of an
inquiry under section 202 of the Code as
the same is a matter for consideration
during trial. The accused is only called
upon to answer the allegations against
him after process has been issued
against
him.
The
legislature
had
deliberately not provided for an accused
to intervene at this stage as that would
frustrate the object of the inquiry.

11. In Pratap v. State of U.P.,
1991 (28) ACC 422, it has been
observed that merely because process
has been issued against a person, it
cannot be said that a decision adversely
affecting his rights has been taken, as he
has merely been asked to face trial in a
Court of law. Therefore no principle of
natural
justice
is
infringed
if
a
Magistrate issues process against a
person without first affording him an
opportunity of hearing. The Code does
not contemplate holding two trials, one
before the issue of process and the other
after
the
process
is
issued.
The
legislature has provided an elaborate
procedure for hearing an accused after
the trial begins in a Court of law.

12. The same view has also been
taken in S.C. Mishra v. State, 2001 (1)
ACC 342, and Anil Kumar v. State of
U.P., 1991 (28) ACC 422. The aforesaid
views in Pratap (supra) and the other
abovementioned authorities have been
approved by a Full Bench of this Court
in Ranjeet Singh v. State of U.P., 2000
Cri.L.J 2738.

13. The thrust of the argument was
that if after cognizance when the Court
decides to conduct an inquiry under
section 200 or 202 Cr.P.C, no right of
hearing, beyond the right of the accused
to be present personally or through
counsel is permitted, where would the
question arise of the accused having a
right to be heard when an order by the
Magistrate only directing the police to
investigate a cognizable offence in
exercise of powers under section 156(3)
Cr.P.C was passed at the pre-cognizance
stage.

14. In Union of India v. W.N.
Chaddha, 1993 Cri.L.J 859 (SC) it has
been held in paragraph 93: ".......More
so, the accused has no right to have any
say as regards the manner and method
of investigation. Save under certain
exceptions under the entire scheme of
the
Code,
the
accused
has
no
participation as a matter of right during
the course of the investigation of a case
instituted on a police report till the
investigation culminates in filing of a
final report under S. 173(2) of the Code
or in a proceeding instituted otherwise
than on a police report till the process
is issued under S. 204 of the Code, as
the case may be. Even in cases where
cognizance of an offence is taken on a
complaint notwithstanding the said
offence is triable by a Magistrate or
triable exclusively by the Court of
Session, the accused has no right to
have participation till the process is
issued. In case the issue of process is
postponed as contemplated under S. 202
of the Code, the accused may attend the
subsequent
inquiry
but
cannot
participate. There are various judicial
pronouncements to this effect but we
feel that it
is not necessary to
1402 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
recapitulate those decisions. At the
same time, we would like to point out
that there are certain provisions under
the Code empowering the Magistrate to
give an opportunity of being heard
under certain specified circumstances."

15.

Illustrative
circumstances
where the accused has been given a
right of hearing during trial are spelt out
in paragraphs 93 and 94 in W.N.
Chaddha (supra). Thus under S. 227 of
the Code dealing with discharge of an
accused in a trial before a Court of
Session under Chap. XVIII, the accused
is to be heard and permitted to make his
submissions before the stage of framing
the charges. Under S. 228 of the Code,
the trial Judge has to consider not only
the records of the case and documents
submitted
with
it,
but
also
the
submissions of the accused and the
prosecution
made
under
S.
227.
Similarly, under S. 239 falling under
Chapter XIX dealing with the trial of
warrant cases, the Magistrate may give
an opportunity to the prosecution and
the accused of being heard and to
discharge the accused for reasons to be
recorded
in
case
the
Magistrate
considers the charge against the accused
to be groundless. S. 240 of the Code
dealing with framing of charges also
requires examination of an accused
under S. 239 before the charge is
framed. Under S. 235(2), in a trial
before a Court of Sessions and under S.
248(2) of the trial of warrant cases, the
accused as a matter of right, is to be
given an opportunity of being heard. On
the other hand the provisions relating to
investigation under Chapter XII of the
Code do not confer any right of prior
notice and hearing to the accused.

16. According to the decision in
W.N. Chaddha the prospective accused
can also not get any advantage of the
principle of Audi Alteram Partem at the
stage of investigation as no substantive
rights of the accused who has not yet
been summoned are involved. Moreover
the accused will have all rights to be
heard and to raise his defence pleas
during the course of the trial.

17.

In
Bhagwan
Samardha
Sreepada
Vallabha
Venkata
Vishwandaha Maharaj v. State of A.P.
and others., JT 1999 (4) SC 537 it has
been held that even after submission of
a final report, the police in exercise of
powers under section 173 (8) is
empowered to further investigate the
matter. No obligation is cast at that
stage also to hear the accused, as casting
such an obligation would unnecessarily
place a burden on the Courts to search
for all the potential accused and to
provide them with an opportunity of
being heard before further investigation
could
be
conducted,
defeating
its
purpose.

18. In C.B.I. and another v. Rajesh
Gandhi and another, AIR 1977 SC 93 it
has been observed in paragraph 8 that
the decision to investigate and the
agency which should investigate the
offence does not attract the principles of
natural justice and the accused has no
say in the matter as to who should
investigate the offence he is charged
with.

19.

In
Bhagwant
Singh
v.
Commissioner of Police, 1985 (22) ACC
246 (SC) it was held that after
consideration of the report under section
173(2)
of
the
Code,
where
the
3 All] Father Thomas V. State of U.P. and another
1403
Magistrate
decides
not
to
take
cognizance and to drop the proceedings
or reaches a conclusion that there was
no sufficient ground for proceeding
against some of the persons mentioned
in the FIR, the Magistrate must give
notice to the informant and provide him
with an opportunity to be heard at the
time of consideration of the report. Here
again no right of hearing has been
conferred on an accused when the
Magistrate decides to hear the informant
on receipt of the report under section
173 (2) of the Code, when he is of the
opinion that no ground exists for
proceeding against the accused.

20. In Karan Singh v. State of
U.P., 1997 (34) ACC 163 it has been
held by the referring single judge,
Hon'ble J.C. Gupta that neither under
the Code, nor under any principle of
natural justice is the Magistrate required
to issue notice or afford opportunity of
hearing to the accused, where the police
has submitted a final report, but the
Magistrate on consideration of the
material on record decides to take
cognizance under section 190(1)(b) of
the Code and directs issue of process to
the accused.

21. In Karan Singh v. State it has
been 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 nowhere 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
cannot be clothed also with a right to
challenge the order of the Magistrate by
preferring a revision under the Code.
He cannot be termed as an "aggrieved
person" for purpose of section 397 of
the Code."

22. Pertinently it has been
observed in Abdul Aziz v. State of U.P.,
2009 Cri.L.J 1683 in paragraph 9: "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 cannot
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 cannot 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."

23. In the case of Chandan v. State
of U. P. and another 2007(57) ACC 508
: (2007 (1) ALJ (NOC) 7 (All.) it was
1404 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
also held that the accused does not have
any right to challenge an order passed
under Section 156(3) Cr. P. C.

24. Similarly in Surya Kant Dubey
& Ors. v. State of U.P. & Anr., 2008
Cri.L.J. 2556, Rakesh Mohan Sharm v.
State of U.P. & Ors., 2007(57 ACC 488,
Rakesh Puri v. State (2007 (1) ALJ 169)
it has been held in Single Judge
decisions that at the stage of 156(3) of
the Code, the prospective accused can
not step in before the Magistrate and
interfere with the investigation by
challenging a direction for registration
of the FIR, when he cannot even
participate in the investigation, which is
conducted ex parte at this stage.

25. The learned Single Judge
Hon'ble J.C. Gupta J also referred to
Arun Vyas & others v. Anita Vyas, 1999
(39) SC 170 wherein it was observed
that even if a statutory bar for taking
cognizance is raised on the ground that
the complaint was barred by limitation
under section 468 of the Code, the
appropriate stage for the accused to
raise this objection was at the stage of
framing of charges.

26. State of Punjab v. Raj Singh &
Others, JT 1999 SC 145 was cited for
the proposition that even where a
jurisdictional bar to proceed with a case,
in the absence of certain pre-conditions
as required under section 195 Cr.P.C is
claimed, no embargo can be placed on
the power of the police to investigate.
The bar, if at all, could only be
considered at the stage when the Court
decides to take cognizance of the case.

27. Sri D.S. Mishra on the other
hand has placed reliance on the decision
of the Apex Court in Raghu Raj Singh
Rousha v. Shiva Sundaram Promoters
Private limited and another, (2009) 1
SCC (Cri) 801 for making a submission
that at the stage of passage of an order
under section 156 (3) Cr.P.C, the
accused has a right to be heard.

28. It may be noted that the
backdrop of Raghu Raj Singh Rousha's
case was that the complainant company
had
filed
a
complaint
petition
accompanied by an application under
section 156 (3) of the Code before the
Metropolitan
Magistrate
alleging
commission of offences under sections
323, 382, 420, 465, 471, 120-B, 506 and
34 IPC against the accused. The
Magistrate
refused
to
direct
investigation in terms of section 156(3)
Cr.P.C, but directed the complainant to
lead pre-summoning evidence. The
High Court however in a criminal
revision against the order of the
Magistrate, where only the State was
impleaded,
without
giving
any
opportunity to the accused to be heard
set aside the order of the Magistrate and
directed the Magistrate to examine the
matter afresh after calling for a police
report. The High Court's order was set
aside by the Apex Court on two counts.
One that there was an infringement of
section 401 (2) of the Code as the right
of hearing to an accused, or any other
person who may be aggrieved mandated
by the aforesaid provision, was denied
to the aggrieved party as a result of the
High Court's order. Two, according to
the Apex Court the initial order of the
Magistrate, who declined to entertain
the application under section 156 (3) of
the
Code,
but
directed
that
the
procedure of a complaint case be
followed, and that the witnesses be
3 All] Father Thomas V. State of U.P. and another
1405
examined under section 200 and 202
Cr.P.C. indicated that cognizance had
been taken, hence a right of hearing had
accrued to the accused. That would not
have been the case, if only a precognizance order of the Magistrate
refusing to issue a direction under
section
156(3)
Cr.P.C.
had
been
challenged in the High Court by the
informant, where right of hearing had
been denied to the accused in a Criminal
Revision. These are the two basic
distinctions from a direct order by a
Magistrate to the police to investigate
an offence. Here the direction under
section 156(3) Cr.P.C has not been
issued consequent to any direction by
the High Court in a criminal revision at
the instance of the informant where only
the State is made a party, and the
aggrieved
accused
is
denied
the
opportunity of hearing contemplated
under section 401(2) Cr.P.C. Also it is a
pre-cognizance order only containing a
direction
of
the
Magistrate
for
investigation by the police, where no
valuable right has accrued to the
prospective accused, which is distinct
from the post cognizance order in
Rousha's cases, where the Magistrate
had decided to follow the procedure of a
complaint case under section 200 and
202 Cr.P.C. We therefore find that
Rousha's case is no authority for the
proposition that any right of hearing
accrues to a prospective accused or that
any criminal revision is maintainable
against an order of the Magistrate
simply directing the police officer incharge of a police station to investigate
a case in exercise of powers under
section 156(3) of the Code.

29. From a consideration of the
aforesaid authorities, it is apparent that
even when a complaint is filed under
section 190(1) (a) and the Court decides
to take cognizance and to adopt the
procedure provided for inquiry under
section 200 and 202 Cr.P.C, the accused
is only permitted to remain present
during the proceedings, but not to
intervene or to raise his defence, until
the order issuing summons is passed.
The right of hearing of a prospective
accused at the pre-cognizance stage,
when only a direction for investigation
by the police is issued by the Magistrate
under section 156(3) Cr.P.C., can only
be placed at a lower pedestal. It is only
during the course of trial that the
accused has been conferred rights at
different stages to raise his defence. As
the authorities show, that in the absence
of any statutory right of hearing to the
prospective
accused
at
the
precognizance stage, when the direction to
investigate has only been issued by the
Magistrate under section 156(3), the
accused cannot be conferred with any
right of hearing even under any
principle of audi alteram partem.

30. We have also seen that during
the stage of investigation the accused
has no right of intervention as to the
mode and manner of investigation and
who should investigate.

31. Even after submission of a
final report, either when the police
decides to order further investigation
under section 173(8) Cr.P.C, or before
accepting or rejecting the report, only
the informant is required to be heard.
The accused is not entitled to be heard
even at this stage. In this view it would
be unrealistic to confer a right of
hearing
when
only
an
innocuous
direction for investigation is passed by
1406 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
the Magistrate in a case disclosing a
cognizable offence., especially when the
allied order regarding the decision of a
police officer to investigate in exercise
of powers under section 156(1) is not
vulnerable to challenge in the criminal
revision. Also when objections to
maintainability of a case are raised on
the ground of limitation under section
468 or under section 195 Cr.P.C, the
appropriate stage for raising these
objections is at the time of cognizance
or at the time of framing of charges, and
not when a Magistrate issues a direction
for investigation under section 156(3)
Cr.P.C.

32. In the light of the aforesaid
discussion, it is abundantly clear that
the 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. The first question is
answered accordingly.

B. Whether an order under
Section 156(3) is an interlocutory
order and revision against the said
order is barred, under Section 397(2)
Cr.P.C.

33. It was observed by the learned
Single Judge that as no substantive
rights and liabilities of the accused are
involved at the stage when an order is
passed by the Magistrate directing the
police merely to investigate into a
cognizable
offence
in
exercise
of
powers under section 156(3) Cr.P.C.
and only the informant and the police
are in the picture, the said proceedings
are purely interocutory in nature, and
are not revisable. It is only after
investigation when a report under
section 173 (2) of the Code is submitted
by the police, that the Magistrate makes
up his mind whether to take cognizance
or to drop the proceedings.

34. S. 397 (2) of the Code reads as
follows.

"The powers of revision conferred
by sub-section (1) shall not be exercised
in relation to any interlocutory order
passed in any appeal, inquiry, trial or
other proceeding."

35. Only if cognizance is taken and
process issued that the accused gets a
right of hearing. Before that stage
according to the learned Single Judge,
any order, including an order under
section
156(3)
Cr.P.C,
will
be
interlocutory in nature.

36. The Statement of Objects and
Reasons of s. 397(2) as contained
Clause (d) of Paragraph 5 of the
accompanying the 1973 Code. runs
thus:

"the powers of revision against
interlocutory orders are being taken
away, as it has untitled folderbeen
found to be one of the main contributing
factors in the delay of disposal of
criminal cases."

37. In support of his contention
that a direction by the Magistrate to the
police under section 156 (3) Cr.P.C. to
register and investigate a criminal
offence
may
not
amount
to
an
interlocutory order, but it could at best
be described as an intermediate order,
Sri D.S. Mishra Advocate has placed
reliance on the Apex Court decision in
3 All] Father Thomas V. State of U.P. and another
1407
Madhu Limaye v State of Maharashtra
1978 (15) ACC 184.

38. Madhu Limaye (supra) no
doubt lays down that orders, such as the
order in that case issuing process
against the accused could not be
described as a final order, but it was
also not an interlocutory order, which
could have attracted the bar to the
maintainability of the criminal revision
in view of section 397 (2) of the Code,
because if the plea of the accused was
rejected on a point which when accepted
could have concluded the particular
proceedings. Rather according to the
said decision it should be described as a
type of intermediate order falling in the
middle course. In Madhu Limaye an
objection had been raised by the
appellant that the cognizance taken by
the Sessions Court without commitment
of the case to it in exercise of powers
under section 199(2) Cr.P.C, on a
complaint under section 500 IPC by the
Public Prosecutor based on the sanction
by the State government under section
199(4) Cr.P.C was incompetent, as no
complaint had been made by the
aggrieved person Sri A.R. Antulay, the
Chief
Minister,
and
the
alleged
defamatory statements related to acts
done in his personal capacity, and not in
the discharge of his public duties. If this
contention was accepted, it would have
resulted in the order of cognizance
passed by the Sessions Judge without
the case being committed to him, being
set aside. Hence this objection would go
to the root of the matter, and could not
be ignored only by describing the order
as interlocutory in nature.

39. In Amar Nath v. State of
Maharashtra,
AIR
1977
SC
2185
interlocutory orders have been described
thus in paragraph 6: "It seems to us that
the term "interlocutory order" in S. 397
(2) of the 1973 Code has been used in a
restricted sense and not in any broad or
artistic sense. It merely denotes orders
of a purely interim or temporary nature
which do not decide or touch the
important rights or the liabilities of the
parties. Any order which substantially
affects the rights of the accused, or
decides certain rights of the parties
cannot be said to be an interlocutory
order so as to bar a revision to the High
Court against that order, because that
would be against the very object which
formed the basis for insertion of this
particular provision in S. 397 of the
1973 Code. Thus, for instance, orders
summoning witnesses. adjourning cases,
passing orders for bail, calling for
reports and such other steps in aid of
the pending proceeding, may no doubt
amount to interlocutory orders against
which no revision would lie under
Section 397 (2) of the 1973 Code. But
orders which are matters of moment and
which affect or adjudicate the rights of
the accused or a particular aspect of the
trial cannot be said to be interlocutory
order so as to be outside the purview of
the revisional jurisdiction of the High
Court.

40. In Amar Nath the order
summoning
the
appellants
in
a
mechanical manner after the police had
submitted a final report against them
leading to their release by the Judicial
Magistrate, and the revision against that
order before the Additional Sessions
Judge preferred by the complainant had
also
failed.
Even
the
subsequent
complaint by the complainant had been
dismissed on merits. Against the latter
1408 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
dismissal of the complaint when the
complainant preferred a revision, the
Sessions Judge set aside the order of the
Judicial Magistrate and ordered further
inquiry,
whereupon
the
Magistrate
straightaway summoned the appellants
for trial. This order which appeared to
infringe substantial rights acquired by
the appellants was considered an order
of moment and not a mere interlocutory
order, which would invite the bar to
entertaining the revision under S. 397(2)
of the Code.

41. An order under section 156(3)
Cr.P.C.
passed
by
the
Magistrate
directing
the
police
officer
to
investigate a cognizable case on the
other hand is no such order of moment,
which impinges on any valuable rights
of the party. Were any objection to the
issuance of such a direction to be
accepted (though it is difficult to
visualize any objection which could
result in the quashing of a simple
direction
for
investigation),
the
proceedings would still not come to an
end, as it would be open to the
complainant informant to move an
application under section 154(3) before
the Superintendent of Police (S.P.) or a
superior officer under section 36 of the
Code. He could also file a complaint
under section 190 read with section 200
of the Code. This is the basic difference
from the situations mentioned in Madhu
Limaye and in Amar Nath's cases, where
acceptance of the objections could result
in the said accused being discharged or
the
summons
set
aside,
and
the
proceedings
terminated.
Also
the
direction
for
investigation
by
the
Magistrate is but an incidental step in
aid of investigation and trial. It is thus
similar to orders summoning witnesses,
adjourning cases, orders granting bail,
calling for reports and such other steps
in aid of pending proceedings which
untitled folderhave been described as
purely interlocutory in nature in Amar
Nath (supra).

42. In this connection it has been
aptly
noted
in
Devarapalli
Lakshminarayana Reddy v Narayan
Reddy, AIR 1976 SC 1672, that "an
order made under sub-section (3) of
Section 156, is in the nature of a
peremptory reminder or intimation to
the police to exercise their plenary
powers of investigation under Section
156 (1)."

43. The power conferred under
section 156(3) Cr.P.C. is of the same
nature as the power under section
156(1), which is the power conferred on
a police officer in-charge of a police
station to investigate any cognizable
case to investigate a case, without
orders of the Magistrate, which the
Magistrate of the local area would have
power to inquire into or try. The police
officer records an FIR in accordance
with the procedure mentioned in section
154(1) of the Code. In the event of the
failure of the police officer to record the
information, the aggrieved informant
has been given a right to approach the
Superintendent of Police under section
154(3) for a direction for investigation.
Such powers may also be exercised by
any officer superior in rank to an officer
in-charge of a police station in view of
s. 36 of the Code. The powers of a
Magistrate for giving directions under
section 156(3) is thus allied to the
powers of police officers under sections
154(1), 154(3) and 36 of the Code. It
would thus be highly illogical to suggest
3 All] Father Thomas V. State of U.P. and another
1409
that the Courts have no jurisdiction to
interfere in a criminal revision or other
judicial proceedings with the decision of
the police officer in-charge of the police
station to lodge an FIR under section
154(1) of the Code or by a superior
officer under section 154(3), or the
actual investigation conducted by the
police under the aforesaid provisions,
but the initial order of the Magistrate
under
section
156(3)
Cr.P.C
peremptorily reminding the police to
perform its duty and investigate a
cognizable offence could be subject to
challenge in a criminal revision or other
judicial proceeding.

44. We thus see that the orders for
investigation are only an ancillary step
in aid of the investigation or trial, and
are clearly interlocutory in nature,
similar to orders granting bail, or calling
for records, or issuing search warrants,
or summoning witnesses and other like
matters which infringe no valuable
rights of the prospective accused, and
are not amenable to challenge in a
criminal revision, in view of the bar
contained in section 397(2) of the Code.

45. Also the situations in Madhu
Limaye or in Amar Nath's cases are
clearly distinguishable, where refusal to
consider the objections raised on behalf
of the accused may have prevented his
being discharged and may have caused
him to be summoned to face trial,
resulting in the orders being described
as neither final nor interlocutory, but
intermediate
in
nature.
Revisions
against the said intermediate orders
would therefore not attract the bar under
section 397(2).