| Citation | 2008 CriLJ 1515 |
| Date of Judgment | 4 December, 2007 |
| Court | High court of Allahabad |
| Case Type | CRIMINAL |
| Appellant | Prof. Ram Naresh Chaudhary |
| Respondent | State of U.P. |
| Bench | Vijay Kumar Verma, J. |
| Referred | Cr.P.C. Sec 156(3), 397, 482, 401 |
FACTS OF THE CASE –
Prof. Anirudh Prasad was the Head of Department of Law Faculty in Deen Dayal Upadhyay University, Gorakhpur in the year 2002-03. He moved an application (Annexure-1) under Section 156(3) of the Code of Criminal Procedure (Cr.P.C. for short) in the Court of Chief Judicial Magistrate, Gorakhpur on 10.03.2004 with the prayer to direct S.H.O., P.S. Cantt., Gorakhpur to lodge the F.I.R. and investigate the case. Shorn of unnecessary details, the allegations made in that application, in brief, are that Km. Sanyogita Misra by playing fraud on the University, sought admission in L.L.B. 1st Year in the year 2002-03 in OBC category on the basis of forged caste certificate in collusion with Prof. Ram Naresh Chaudhry and Dr. Girija Shanker Tiwari (both revisionists). Prof. Ram Naresh Chaudhry was the Dean of Law Faculty at the relevant time and when the applicant made complaints to University authorities, Dr Girija Shanker Tiwari was the Dean of this faculty, who being fully conversant of all the
facts, admitted Km. Sanyogita in L.L.B. 2nd Year. It is further averred in the application that the real name of Km. Sanyogita is Sanyogita Misra, who is the daughter of Raghuwar Dayal Misra, but she sought admission showing her name as Km. Sanyogita Chauhan daughter of Vibhuti Prasad Chauhan on the basis of forged papers, but in spite of a complaint made by the applicant, Dr. Girija Shanker Tiwari permitted Km. Sanyogita continued her studies and admitted her in L.L.B. 2nd year. After calling for the report from S.H.O., P.S. Cantt., Gorakhpur as well as the authorities of Deen Dayal Upadhyay University, the learned Additional Chief Judicial Magistrate, Gorakhpur vide impugned order dated 20.04.2004 directed the S.H.O. concerned to investigate the case after lodging the F.I.R. and submit his report in accordance with law. Hence, this revision.
ISSUE –
Whether the alleged accused has the right to challenge an order passed under Section 156(3) Cr.P.C. at a pre-cognizance stage by a Magistrate?
ARGUMENTS –
He has got no right to raise any objection till the stage of summoning and resultantly he can not be conferred with a right to challenge the order passed prior to his summoning. Further, if the accused does not have a right to instal the investigation, but for the limited grounds available to him under the law, it surpasses all suppositious to comprehend that he possesses a right to resist registration of F.I.R.
12. Distinguishing Division Bench ruling in the case of Ajay Malviya v. State of U.P. 2000(41) ACC 435, this Court in the case of Rakcsh Pari and Anr. v. State of U.P. and Anr. 2006 (56) ACC 910 has held as under:
To sum up the discussions made above it is clear that the alleged accused has no right to challenge an order passed under Section 156(3) Cr.P.C. at pre-cognizance stage by a Magistrate and no revision lay against such an order at the instance of the alleged accused under Section 397(1) Cr.P.C. being barred by Section 397(2) Cr.P.C. nor at his instance an application under Section 482 Cr.P.C. is maintainable for the simple reason that if cognizable offence is disclosed in an application filed by the aggrieved person, then his such an application must be investigated to bring culprits to books and not to thwart his attempt to get the FIR registered by rejecting such an application which will not amount to securing the ends of justice but will amount to travesty of it.
JUDGEMENTS –
➢ It was held in the case of Superintendent and Remembrance of Legal Affairs, West Bengal v. Abani Kumar Banerjee as follows:
When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, hut for the talking, action of some other kind, e.g., ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence
At this stage the accused does not come into picture at all, nor can he be heard. He has no locus to participate in the proceedings. He can at the most stand and watch the proceedings. It must be remembered that it is a pre-cognizance stage. The nature of the order passed by the Magistrate under Section 156(3) Cr.P.C. directing registration and investigation of case is only a peremptory reminder or intimation to the police to exercise its power of investigation under Section 156(1) Cr.P.C, as has been held by Hon’ble Apex Court in the case of Devarappalli Lakshaminarayana Reddy and Ors. v. V. Narayana Reddy and Ors. 1976 ACC 230. How such a reminder is subject to revisional power of the Court is something which goes beyond comprehension. From the nature of the order itself, it is clear that it is an interlocutory order,
not amenable to revisional power of the Court. Section 397(2) Cr.P.C. specifically bars revision filed against interlocutory orders.
➢ This Court in the case of Karan Singh v. State 1997 (34) ACC 163, has observed as follows:
Where an order is made under Section 156(3) Cr.P.C. directing the police to register FIR and investigate the same, the Code no where provides that the Magistrate shall hear the accused before issuing such a direction, nor any person can be supposed to be having a right asking the Court of law for issuing a direction that an FIR should not be registered against him. Where a person has no right of hearing at the stage of making an order under Section 156(3) or during the stage of investigation until Courts takes cognizance and issues process, he can not be clothed also with a right to challenge the order of the Magistrate by preferring a revision under the Code. He can not be termed as an “aggrieved person” for purpose of Section 397 of the Code
Thus at the stage of Section 156(3) Cr.P.C. any order made by the Magistrate does not adversely affect the right of any person since he has got ample remedy to seek relief at the appropriate stage by raising his objections. It is incomprehensible that accused can not challenge the registration of F.I.R. by the police directly, but can challenge the order made by the Magistrate for the registration of the same with the same consequences. Thus, from the discussions made above, it is clear that an accused does not have any right to be heard before he is summoned by the Court under the Code of Criminal Procedure and that he has got no right to raise any objection till the stage of summoning and resultantly he can not be conferred with a right to challenge the order passed prior to his summoning. Further, if the accused does not have a right to instal the investigation, but for the limited grounds available to him under the law, it surpasses all suppositious to comprehend that he possesses a right to resist registration of F.I.R.
➢ Distinguishing Division Bench ruling in the case of Ajay Malviya v. State of U.P. 2000(41) ACC 435, this Court in the case of Rakcsh Pari and Anr. v. State of U.P. and Anr. 2006 (56) ACC 910 has held as under:
To sum up the discussions made above it is clear that the alleged accused has no right to challenge an order passed under Section 156(3) Cr.P.C. at pre-cognizance stage by a Magistrate and no revision lay against such an order at the instance of the alleged accused under Section 397(1) Cr.P.C. being barred by Section 397(2) Cr.P.C. nor at his instance an application under Section 482 Cr.P.C. is maintainable for the simple reason that if cognizable offence is disclosed in an application filed by the aggrieved person, then his such an application must be investigated to bring culprits to books and not to thwart his attempt to get the FIR registered by rejecting such an application which will not amount to securing the ends of justice but will amount to travesty of it.
➢ Similar view has been expressed by this Court in the case of Smt. Reklia Verma and Ors. v. State of U.P. and Ors. 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. In the case of Rakesh Mohan Sharma v. State of U.P. and Ors. 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 maintainable being barred by Section 397(2) Cr. In the case of Smt. Reklia Venna v. 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 he 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.
➢ Again this matter was considered in detail by this Court in the case of Chandan v. State of U.P. and Anr. 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.
➢ Relying upon the decision of Apex Court in the case of Central Bureau of Investigation v. State of Rajasthan 2001 (42) ACC 451, it was held by this Court in the case of Rakesh Puri v. 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.
REFERENCES –
https://www.elitigation.sg/gd/gd/2021
This Article is written by Aabha Marothia of Rajasthan School of Law for Women, Jaipur , Intern at Legal Vidhiya.
