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Order passed under Section 156(3) Cr.P.C. can’t be challenge


A.F.R.Court No. 20

Criminal Revision No. 5841 of 2006

Suryakant Dubey and others……….. Revisionists.
State of U.P and another…………….. Opposite Parties.

Hon’ble Vijay Kumar Verma, J.

List is revised. None is present for the revisionists.

2. Heard learned A.G.A. for the State and perused the record.

3. By means of this revision, the prospective accused have challenged the order dated 11.09.2006 passed by Judicial Magistrate/Additional Civil Judge (J.D.) IInd, Jaunpur in criminal misc. case no. 9 of 2006 (Vindhyavasini Vs. Manish and others), whereby allowing the application moved by opposite party no. 2 Vindhyavasini under Section 156(3) Cr.P.C., S.O. P.S. Sureri has been directed to register the case and investigate the same.

4. At the outset, it was contended by learned A.G.A. that revision against impugned order is not legally maintainable, as the the order of registration of F.I.R. cannot be challenged in revision at the instance of prospective accused and if they are aggrieved by the F.I.R., then they can invoke extra ordinary jurisdiction of High court under Article 226 of the Constitution of India.

5. Having given my thoughtful consideration to the submissions made by the learned A.G.A., I agree with his contention that revision against impugned order is not legally maintainable.

6. In the case of Karan Singh Vs. State (1997(34) ACC 163), this Court has observed as follows:-
“Where an order is made under section 156 (3) Cr.P.C. directing the police to register FIR and investigate the same, the Code no where provides that the Magistrate shall hear the accused before issuing such a direction, nor any person can be supposed to be having a right asking the Court of law for issuing a direction that an FIR should not be registered against him. Where a person has no right of hearing at the stage of making an order under section 156(3) or during the stage of investigation until Courts takes cognizance and issues process, he can not be clothed also with a right to challenge the order of the Magistrate by preferring a revision under the Code. He can not be termed as an “aggrieved person” for purpose of section 397 of the Code.”

7. At the stage of Section 156(3) Cr.P.C., any order made by the Magistrate does not adversely affect the right of any person, since he has got ample remedy to seek relief at the appropriate stage by raising his objections. It is incomprehensible that accused can not challenge the registration of F.I.R. by the police directly, but can challenge the order made by the Magistrate for the registration of the same with the same consequences. If the accused does not have a right to instal 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.

8. In the case of Rakesh Puri and another Vs. State of U.P. and another 2006 (56) ACC 910, the following observations have been made by this Court:-
“To sum up the discussions made above it is clear that the alleged accused has no right to challenge an order passed under section 156(3) Cr.P.C. at pre-cognizance stage by a Magistrate and no revision lay against such an order at the instance of the alleged accused under Section 397(1) Cr.P.C. being barred by section 397(2) Cr.P.C. nor at his instance an application under Section 482 Cr.P.C. is maintainable for the simple reason that if cognizable offence is disclosed in an application filed by the aggrieved person, then his such an application must be investigated to bring culprits to books and not to thwart his attempt to get the FIR registered by rejecting such an application which will not amount to securing the ends of justice but will amount to travesty of it.”

9. Similar view has been expressed by this Court in the case of Smt. Rekha Verma and others Vs. State of U.P. and others 2007(57) ACC 241 in which, it is held that order passed under Section 156(3) Cr.P.C. to direct registration of the case is not revisable and application under Section 482 Cr.P.C. also is not maintainable.

10. In the case of Rakesh Mohan Sharma Vs. State of U.P. and others (2007 (57) ACC 488) also, it is held by this Court that order passed under Section 156(3) Cr.P.C. is an interlocutory order, revision against which is not maintainable being barred by Section 397(2) Cr.P.C.

11. In the case of Smt. Rekha Verma Vs. State of U.P. (supra), this Court has observed as follows:-
“Thus till the stage of summoning, there is no proceeding so far as the accused is concerned. Thus it is clear that so far accused is concerned he is not a party to any “proceeding” till the stage of summoning and he cannot be heard. Section 397 Cr.P.C. deals with “Proceedings”. Thus applying the law laid down by the apex Court so far as accused is concerned, no “Proceedings” has taken place at the stage of section 156(3) of the code. Moreover, order under Section 156(3) of the code is in the nature of an administrative order, because it empowers the Magistrate only to issue a direction to the police to exercise their plenary power of investigation and nothing more. The power which has been conferred on the Superintendent of police under section 154(3) of the Code has been conferred on the Magistrate under section 156(3) Cr.P.C. to check the arbitrary exercise of power by the police echelons and to get the law observed by it and not to flout it. So far as the accused is concerned, he has got no right to object to the registration of FIR against him. He has got no right under any law to appear and say that the Magistrate does not possess the power to order for registration of FIR against him. There is no provision in the Code, which confers such a right to an accused. Conferring such a right through judicial pronouncements will amount to legislation which power the courts do not possess. The Code of Criminal Procedure (Code) does not confer pre FIR registration hearing on a prospective accused.”

12. Again this matter was considered in detail by this Court in the case of Chandan Vs. State of U.P. and another 2007(57) ACC 508 in which, it was held that accused does not have any right to challenge an order passed under Section 156(3) Cr.P.C.

13. Relying upon the decision of Apex Court in the case of Central Bureau of Investigation Vs. State of Rajasthan (2001 (42) ACC 451), it was held by this Court in the case of Rakesh Puri Vs. State (supra) as follow:-
“It is preposterous even to cogitate that a person has a right to appear before the Magistrate to oppose an application seeking a direction from him for registration and investigation of the offence when he has no right to participate in the said ex-pare proceeding. If permitted this will amount to killing of foetus of investigation in the womb when it was not there at all. Such power has not been conferred under the law on the prospective accused.
When the accused does not have any right to participate in a proceeding how can he be permitted to challenge an interlocutory order passed in such a proceeding. If an accused cannot stop registration of a complaint under section 190(1)(a) Cr.P.C. howsoever fanciful, mala fide or absurd the allegations may be, he certainly does not possess the power to stall registration of FIR of cognizable offence against him.”

14. Keeping in view the law laid down in above mentioned cases, I am of the considered view that instant revision at the instance of the revisionists/prospective accused against impugned order allowing the application under Section 156(3) Cr.P.C. is not legally maintainable.
Consequently, the revision is dismissed and interim order dated 11.10.2006 is hereby vacated.
The office is directed to send a copy of this order to the Lower Court concerned for further necessary action.

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