# Shalini Sahai & Anr. Revisionists v. State of U.P. & Anr

- **Citation:** Criminal Revision No. 128 of 2020
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-05-21
- **Case number:** Criminal Revision No. 128 of 2020
- **Bench:** Chandra Dhari Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shalini-sahai-anr-revisionists-v-state-of-u-p-anr-46292
- **Pages:** 10

## Headnote

law-
Code
of
Criminal
Procedure,1973-Section 397/401, 156(3)
&
Indian
Penal
Code,
1860-Sections
506,504, 406,420-challenge to-remedy of
revision against the order u/s 156(3)-
prospective accused has no locus standi to
challenge a direction for investigation of a
cognizable case u/s 156(3) Cr.P.C. before
cognizance or issuance of process against
the accused-accused gets right of hearing
only if cognizance is taken or process
issued-before that stage any order will be
interlocutory in nature-hence, remedy of
revision against the order u/s 156(3) is
barred u/s 397.(Para 11 to 33)

Orders summoning witnesses, adjouring 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 u/s 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.(Para 27)

The revision is dismissed. (E-6)

List of Cases Cited:-

## Text

1030 INDIAN LAW REPORTS ALLAHABAD SERIES
which in its opinion the accused has
committed, than might have been inflicted
for that offence by the Court passing the
order or sentence under appeal."

5. Under sub-Section (III) of "b" of
Section 386 of Cr.P.C. written as above, it
is mandate that Appellate Court will not
enhance sentence unless there is an appeal
by State for enhancement of sentence and
the same is being here. Against judgment
of acquittal, there must be an appeal by
State, whereas, admittedly, in present
appeal, there was neither appeal by State
either for enhancement of sentence or for
conviction in offence, for which there was
acquittal by trial Court and learned
Additional Session Judge, has passed
impugned judgment of conviction and
sentence under Section 323 of I.P.C., with
enhancement of offence punishable under
Sections 498-A read with 4 of D.P. Act. It
was apparently erogenous and against the
provision of law of 'Code' given as above.

6. Hence, apparently, it is misuse of
process of law and perversity in the
judgment.

7. Hence, this revision is being
allowed.

8. Impugned judgment of Appellate
Court is being set aside and file is
remanded back to District and Sessions
Judge, Aligarh, for its hearing afresh.
----------
(2020)03-05ILR A1030
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 21.05.2020

BEFORE

THE HON'BLE CHANDRA DHARI SINGH, J.

Criminal Revision No. 128 of 2020

Shalini Sahai & Anr. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Shishir Pradhan

Counsel for the Opposite Parties:
Govt. Advocate, Sri Ashok Kumar Singh

A.
Criminal
law-
Code
of
Criminal
Procedure,1973-Section 397/401, 156(3)
&
Indian
Penal
Code,
1860-Sections
506,504, 406,420-challenge to-remedy of
revision against the order u/s 156(3)-
prospective accused has no locus standi to
challenge a direction for investigation of a
cognizable case u/s 156(3) Cr.P.C. before
cognizance or issuance of process against
the accused-accused gets right of hearing
only if cognizance is taken or process
issued-before that stage any order will be
interlocutory in nature-hence, remedy of
revision against the order u/s 156(3) is
barred u/s 397.(Para 11 to 33)

Orders summoning witnesses, adjouring 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 u/s 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.(Para 27)

The revision is dismissed. (E-6)

List of Cases Cited:-

1. Anil Kumar & Ors. Vs. M.K. Aiyappa & anr. (2013)
10 SCC 705

2. Father Thomas Vs. St. Of U.P. & anr. (2011) 1 JIC
533 (ALL) (FB)

3. Suresh Chand Jain Vs. St. Of M.P. & ors., AIR
(2001) SC 571
3-5 All. Shalini Sahay & Anr. Vs. State of U.P. & Anr.
1031
4. Pratap Vs. St. Of U.P. (1991) 28 ACC 422

5. Bhagwan Samardha Sreepada Vallabha Venkata
Vishwandaha Maharaj Vs. St. Of A.P. & ors, JT (1999)
4 SC 537

6. CBI & Anr. Vs. Rajesh Gandhi & anr. (1997) Cr.L.J.
63

7. Bhagwant Singh Vs. Commnr. Of Police, (1985) 22
ACC 246 SC

8. Abdul Aziz Vs. St. Of U.P. (2009) Cri.L.J. 1683

9. Madhu Limaye Vs. St. Of Mah. (1978) 15 ACC 184

10. Amar Nath Vs. St. Of Mah. AIR (1977) SC 2185

11. Emperor Vs. Khwaja Nazir Ahmad, AIR (1945) PC
18

(Delivered by Hon'ble Chandra Dhari
Singh, J.)

1. The instant criminal revision under
Section 397/ 401 of Cr.P.C. has been
preferred against the judgment and order
dated 28.01.2020 passed in Criminal Misc.
Case No.94 of 2020 (Raj Kishore v. Shalini
Sahai and another), by which the learned
Special Judge, SC/ ST Act, Lucknow has
allowed the application moved by opposite
party no.2 under Section 156(3) of Cr.P.C.
directing the Station House Officer, Gomti
Nagar to lodged an FIR and submit report.

2. Submission of learned Counsel for
revisionists is that the opposite party no.2
Raj Kishore had moved an application
under Section 156(3) of Cr.P.C. against the
revisionists on 18.01.2020, which has been
allowed by the impugned order. Learned
Counsel has further submitted that the
impugned order is arbitrary and contrary to
the law laid down by the Apex Court.

3. Learned Counsel for revisionists
has further submitted that earlier on
25.11.2019, the opposite party no.2 had
lodged an FIR against the revisionist Anit
Kumar and his wife Sadhna Srivastava
have in Case Crime No.1412 of 2019,
under Sections 506, 504, 406, 420 IPC at
Police Station Gomti Nagar, District
Lucknow. The revisionist no.1 being a
police officer posted at Police Station
Gomti Nagar, District Lucknow was
appointed to investigate the matter. During
investigation, the revisionist no.1 called
both the parties to compromise the dispute
regarding construction of house. Learned
Counsel has again submitted that the
application under Section 156(3) of Cr.P.C.
has been moved only in order to put
pressure upon the revisionists.

4. Learned Counsel for revisionists
has
further
submitted
that
while
discharging official duty, the revisionist
no.1 had never used any word relating to
caste against the opposite party no.2 and,
therefore, the averments made in the
application under Section 156(3) of Cr.P.C.
is totally false and fabricated. Learned
Counsel again submitted that the impugned
order is contrary to law as no first
information report can be lodged against
any public servant without obtaining
sanction from the competent authority for
initiation of criminal proceedings. The
revisionist no.1 is a public servant and,
therefore, she is entitled for protection
under Section 197 of Cr.P.C. She cannot be
made accused without any sanction by the
State Government. Therefore, in these
background, the impugned order is liable to
be quashed.

5. In support of his arguments,
learned Counsel for revisionists has placed
reliance in the case of Anil Kumar and
others v. M.K. Aiyappa and another;
(2013) 10 SCC 705.
1032 INDIAN LAW REPORTS ALLAHABAD SERIES

6. Per contra, learned A.G.A. and
learned Counsel appearing for opposite
party no.2 have vehemently opposed the
submissions advanced by learned Counsel
for revisionists.

7. Learned Counsel appearing on
behalf of opposite party no.2 has submitted
that the opposite party no.2 is a retired
Government Employee and the revisionist
no.2 is a contractor, builder and property
dealer. The revisionist no.2 entered into an
agreement with opposite party no.2 for
construction of his house and paid Rs.50
lakhs but deliberately, the revisionist no.2
left the work incomplete. The opposite
party no.2 made several request but no
heed has been paid. Thereafter having left
with no option, the opposite party no.2
moved an application under Section 156(3)
of Cr.P.C. and the learned Court below
while passing the impugned order on the
said application has not committed any
error.
Learned
Counsel
has
further
submitted that the ratio laid down in the
case of Anil Kumar (Supra) is not
applicable to the instant case because the
ration of the said case is applicable on the
cases
fall
under
the
Prevention
of
Corruption Act in which there is specific
provision under Section 19 but in the
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, there is no
such provision like Section 19 of the
Prevention of Corruption Act.

8. Learned Counsel for opposite party
no.2 has further submitted that the Full
Bench of this Court in Father Thomas v.
State of U.P. and another; 2011 (1) JIC
533 (ALL)(FB) has held that criminal
revision against the order passed under
Section
156(3)
of
Cr.P.C.
is
not
maintainable as the order passed under
Section 156(3) is an interlocutory order.
Learned Counsel has submitted that under
the provisions of Section 19 of the
Prevention of Corruption Act, 1988,
previous sanction is necessary for taking
cognizance of an offence committed by a
public servant but for lodging of an FIR,
previous
sanction
is
not
necessary.
Therefore, Section 19 of the Prevention of
Corruption Act is not applicable in this case
and accordingly, the instant criminal
revision is liable to be dismissed.

9. I have heard learned Counsel for
the parties and perused the material
available on record.

10. In the instant case, the opposite
party no.2 had moved an application under
Section 156(3) of Cr.P.C. before the
learned Magistrate with the allegation that
the opposite party no.2 and the revisionist
no.2 entered into an agreement for
construction of house but the revisionist
no.2, who is the contractor/ builder denied
to complete the construction work after
taking Rs.5,00,000/- (fifty lakhs) from the
applicant. An FIR against the revisionist
no.2 and his wife was lodged by the
opposite party no.2 as Case Crime No.1412
of 2009. The revisionist no.1 is the
Investigating Officer of this case. The
revisionist no.1 called for both the parties
and put pressure on the opposite party no.2
for compromise and on denial, used filthy
language by making caste-based remark.
The opposite party no.2 tried to lodge an
FIR but when FIR has not been lodged, the
opposite party no.2 moved the aforesaid
application under Section 156(3) of Cr.P.C.

11. The main objection taken by
learned Counsel for opposite party no.2 is
that an accused has no locus standi before
an order of summoning is passed and since
an
order
directing
investigation
is
3-5 All. Shalini Sahay & Anr. Vs. State of U.P. & Anr.
1033
interlocutory in nature, such an order is not
subject to a revision in view of the statutory
bar contained in Section 397(2) of Cr.P.C.
The main issues before this Court to
adjudicate are as follows:

"(A) Whether the order of learned
Magistrate made in exercise of powers
under Section 156(3) of 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 is issued?

(B) Whether an order made under
Section
156(3)
of
Cr.P.C
is
an
interlocutory order and remedy of revision
against such order is barred under subsection (2) of Section 397 of Cr.P.C.?"

12. Before examining any of the
questions framed above, it would be
necessary to reproduce the words of section
156 which falls in Chapter XII of Cr.P.C.:

"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.

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

Issue No.(A)

13. As pointed out in Suresh Chand
Jain v. State of M.P. and others; AIR 2001
SC 571 that there is a difference in the
position of a prospective accused against
whom an order is made under section
156(3) of Cr.P.C. before cognizance is
taken by the Magistrate, and an accused
against whom investigation has been
directed under section 202(1) of Cr.P.C.
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 postcognizance 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
1034 INDIAN LAW REPORTS ALLAHABAD SERIES
Magistrate on a complaint under sections
190(1)(a) and after examination of the
complainant under section 200 of the Code.

14. In the case of 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.

15. 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.

16. 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.

17. In the case of C.B.I. and another
v. Rajesh Gandhi and another; 1997
Cr.L.J 63, it has been observed 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.

18.

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 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.

19. In the case of Abdul Aziz v. State
of U.P.; 2009 Cri.L.J 1683, the court has
observed as under:

"Thus at the stage of Section
156(3) Cr. P. C. any order made by the
Magistrate does not adversely affect the
3-5 All. Shalini Sahay & Anr. Vs. State of U.P. & Anr.
1035
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."

20. From a consideration of the
aforesaid laws, 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
pre-cognizance 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.

21. This Court has 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.

22. 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 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.

23. 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
1036 INDIAN LAW REPORTS ALLAHABAD SERIES
process against the accused. The first issue
is answered accordingly.

Issue No.(B)

24. Section 397 (2) of Cr.P.C. 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."

25. 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.

26. n the case of Madhu Limaye v.
State of Maharashtra; 1978 (15) ACC 184,
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's case
(Supra) 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.

27. In the case of Amar Nath v. State
of Maharashtra; AIR 1977 SC 2185, the
Apex Court has held as under:

"6. Let us now proceed to
interpret the provisions of Section 397
against the historical background of these
facts. Sub-section (2) of Section 397 of the
1973 Code may be extracted thus :

"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."

The main question which falls for
determination in this appeal is as to what is
the connotation of the term "interlocutory
order" as appearing in sub-section (2) of
Section 397 which bars any revision of
such an order by the High Court. The term
"interlocutory order" is a term of wellknown legal significance and does not
present any serious difficulty. It has been
used in various statutes including the Code
of Civil Procedure, Letters Patent of the
High Courts and other like statutes. In
Webster's
New
World
Dictionary
"interlocutory" has been defined as an
order other than final decision. Decided
cases have laid down that interlocutory
3-5 All. Shalini Sahay & Anr. Vs. State of U.P. & Anr.
1037
orders to be appealable must be those
which decide the rights and liabilities of the
parties concerning a particular aspect. It
seems to us that the term "interlocutory
order" in Section 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 right of the
accused, or decides certain rights of the
parties
cannot
be
said
to
be
an
interlocutory order so as to bar a revison
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 Section 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."

28. In Amar Nath's case (supra), 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 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.

29. 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 have been
described as purely interlocutory in nature
in Amar Nath (supra).
1038 INDIAN LAW REPORTS ALLAHABAD SERIES

30. As the direction for investigation
passed by the Magistrate under section
156(3) is purely interlocutory in nature, and
involves no substantial rights of the parties,
we are of the view that the bar under
section 397(2) Cr.P.C to the entertainment
of a criminal revision can also not be
circumvented by moving an application
under section 482 Cr.P.C. As observed in
State v. Navjot Sandhu, (2003) 6 SCC 641
in paragraph 29:

"29. Section 482 of the Criminal
Procedure Code starts with the words
"Nothing in this Code". Thus the inherent
jurisdiction of the High Court under
Section 482 of the Criminal Procedure
Code can be exercised even when there is a
bar under Section 397 or some other
provisions of the Criminal Procedure
Code. However as is set out in Satya
Narayan Sharma case [(2001) 8 SCC 607 :
2002 SCC (Cri) 39] this power cannot be
exercised if there is a statutory bar in some
other enactment. If the order assailed is
purely of an interlocutory character, which
could be corrected in exercise of revisional
powers or appellate powers the High Court
must refuse to exercise its inherent power.
The inherent power is to be used only in
cases where there is an abuse of the
process of the court or where interference
is absolutely necessary for securing the
ends of justice. The inherent power must be
exercised very sparingly as cases which
require interference would be few and far
between. The most common case where
inherent jurisdiction is generally exercised
is where criminal proceedings are required
to be quashed because they are initiated
illegally,
vexatiously
or
without
jurisdiction. Most of the cases set out
hereinabove fall in this category. It must be
remembered that the inherent power is not
to be resorted to if there is a specific
provision in the Code or any other
enactment for redress of the grievance of
the aggrieved party. This power should not
be exercised against an express bar of law
engrafted in any other provision of the
Criminal Procedure Code. This power
cannot be exercised as against an express
bar in some other enactment."

31. However it is made clear that the
initial order for investigation under section
156(3) is also not open to challenge in a
writ petition, as it is now beyond the pale
of controversy that the province of
investigation by the police and the judiciary
are not overlapping but complementary. As
observed by the Privy Council in paragraph
37 in Emperor v. Khwaja Nazir Ahmad,
AIR 1945 PC 18 when considering the
scope of the statutory powers of the police
to investigate a cognizable case under
sections 154 and 156 of the Code, that it
would be an unfortunate result if the Courts
in exercise of their inherent powers could
interfere in this function of the police. The
roles of the Court and police are
"complementary not overlapping and the
combination of individual liberty with a
due observance of law and order is only to
be obtained by leaving each to exercise its
own function."

32. In view of above, the order of the
learned Magistrate passed in exercise of
powers under Section 156(3) of 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 and an order made under Section
156(3) of Cr.P.C. is an interlocutory order
and remedy of revision against such order
is barred under sub-section (2) of Section
397.
3-5 All. Anand Kumar Pandey Vs. State of U.P. & Ors.
1039

33. Accordingly, the criminal revision
is hereby dismissed.
----------
(2020)03-05ILR A1039
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.02.2020

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Criminal Revision No. 544 of 2020

Anand Kumar Pandey ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Santosh Kumar Shukla

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

A.
Criminal
law-
Code
of
Criminal
Procedure,1973-Sections 397/401-Section
156(3),200-challenge to-application u/s
156(3)-from the reading of application
cognizable offence was made out-Court
below instead of issuing direction to lodge
FIR and investigate, illegally treated as a
complaint-app-Court
below
has
not
committed
procedural
irregularity
in
exercise of its discretionary jurisdiction
under section 156(3)-Hence, dismissed.
(Para 6 to 40)

B. In its discretionary power,it is open for
the magistrate to direct the police to
register a criminal case u/s 154 Cr.P.C.
and conduct investigation. At the same
time, it is open for the Magistrate, where
the facts of the case and ends of justice so
demand, to take cognizance of the matter
by treating it as a complaint and proceed
for the "inquiry" u/s 200 and 202
Cr.P.C.(Para 35)

It is not incumbent upon a Magistrate to allow
an application u/s 156(3) Cr.P.C. for registration
of the case, he can exercise judicial discretion in
the matter and can pass order for treating it as
complaint or to reject it in suitable cases.

The revision is dismissed. (E-6)

List of Cases Cited:

1. Lalita Kumari Vs. Govt. Of U.P. & ors., (2014)
2 SCC 1

2. Mohammad Yousuf Vs. Smt. Afaq Jahan &
anr., (2006 ) 1 SCC 627

3. R.R. Chari Vs. St. Of U.P., (1951) SC 207

4. Narayandas Bhagwandas Madhavdas Vs. St.
Of W.B.,(1959) SC 1118

5. Gopal Das Sindhi & ors. Vs. St. Of Assam &
anr.,AIR (1961) SC 986

6. Superintendent and Remembrancer of Legal
Affairs,W.B.
Vs.Abani
Kumar
Banerjee,AIR
(1950) Calcutta,437

7. Suresh Chand Jain Vs. St. Of M.P. & anr.,
(2001)2 SCC 628

8. Tula Ram Vs. Kishore Singh, (1977) 4 SCC
459

9. Ram Babu Gupta Vs. St. Of U.P. & ors.,(2001)
43 ACC 50

10. India Carat Pvt. Ltd. Vs. St. Of Karnataka
(1989)2 SCC 132

11. Sakiri Vasu Vs. St. Of U.P. & ors., (2008) 2
SCC 409

12. Vinubhai Haribhai & Malaviya & ors. Vs. St.
Of Guj.& anr. (2019) SCC Online SC 1346

13. Devarapalli Laxminarayan Reddy & ors. Vs.
V. Narayana Reddy & ors.,(1976 ) 3 SCC 252

14. Vinay Tyagi Vs. Irshad Ali @ Deepak &
ors.(2013) 5 SCC 762

15. Ramdev Food Products Pvt. Ltd. Vs. St. Of
Guj., (2015) 6 SCC 439