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Allahabad High Court · body

2008 DIGILAW 2359 (ALL)

ABDUL AZIZ v. STATE OF U. P.

2008-11-28

VIJAY KUMAR VERMA

body2008
JUDGMENT Hon’ble Vijay Kumar Verma, J.—”Whether the prospective accused can challenge the order directing investigation of the case after registration of the FIR”, is the main question that falls for consideration in this application under Section 482 of the Code of Criminal Procedure (in short, ‘the Cr.P.C.’) by means of which, the order dated 12.11.2008 passed by the Judicial Magistrate, Court No. 8, Allahabad on application No. 293/XII of 2008 (Smt. Baby v. Abdul Aziz and others) has been challenged. 2. By the impugned order, the application moved by Smt. Baby (Opposite party No. 2) under Section 156(3), Cr.P.C. has been allowed and S.O. P.S. Kareli (Allahabad) has been directed to investigate the case after lodging the F.I.R. on the basis of that application. 3. Heard Sri Shahabuddin, learned counsel for the applicants, learned A.G.A. for the State and perused the record. 4. At the outset, a preliminary objection has been raised by the learned AGA about maintainability of the application under Section 482, Cr.P.C. against the impugned order and it is contended by him that the order passed under Section 156(3), Cr.P.C. directing investigation of the case after registration of the FIR cannot be challenged by the prospective accused either in the proceeding under Section 482, Cr.P.C. or in Revision under Section 397, Cr.P.C. and hence the application in present case moved by the applicants under Section 482, Cr.P.C. is liable to be rejected on this ground alone. 5. It is submitted by learned counsel for the applicants that with mala fide intention with a view to harass the applicants, application under Section 156(3), Cr.P.C. was moved by Smt. Baby with entirely false allegations and hence, impugned order can be quashed by this Court in its inherent jurisdiction under Section 482, Cr.P.C. 6. Having given my thoughtful consideration to the rival submissions, I find force in the aforesaid preliminary objection raised by the learned AGA. As stated herein-above, the application moved by opposite party No. 2 Smt. Baby under Section 156(3), Cr.P.C. has been allowed by the Court below vide impugned order and S.O. P.S. Kareli (Allahabad) has been directed to investigate the case after registration of the FIR. As stated herein-above, the application moved by opposite party No. 2 Smt. Baby under Section 156(3), Cr.P.C. has been allowed by the Court below vide impugned order and S.O. P.S. Kareli (Allahabad) has been directed to investigate the case after registration of the FIR. In my considered opinion, such order cannot be challenged by the prospective accused either in Revision or in the proceeding under Section 482, Cr.P.C. Reference in this regard may be made to the case of Gulam Mustafa @ Jabbar v. State of U.P. and others, 2008 (61) ACC 922. This matter was also considered by this Court in the case of Prof. Ram Naresh Chaudhary and another v. State of U.P. and others, 2008(60) ACC 476. 7. In Para 9 of the case of Prof. Ram Naresh Chaudhary v. State of U.P. (supra), following observations have been made : “At this stage 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 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 Lak-Shaminarayana Reddy and others v. V. Narayana Reddy and others, 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.” 8.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 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.” 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. 10. 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. 10. 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 Rakesh Puri and another v. State of U.P. and another, 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." 11. Again this matter was considered in detail by this Court in the case of Chandan v. 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. 12. Relying upon the decision of the 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 follows : “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-parte 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. 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.” 13. In view of the law laid down in the aforesaid cases, I am of the considered opinion that the prospective accused has no right to stop the registration of the FIR and its investigation by the police either by filing Revision or moving application under Section 482, Cr.P.C. Although after registration of the case in pursuance of the order passed under Section 156(3), Cr.P.C., the accused can move the High Court in its writ jurisdiction under Article 226 of the Constitution of India for quashing of the FIR, but prior to the registration of the F.I.R., the prospective accused has no right to challenge that order. Therefore, in present case also, the application moved by the applicants under Section 482, Cr.P.C. to set aside the impugned order deserves to be rejected. 14. Consequently, the application under Section 482, Cr.P.C. is hereby rejected. Let a copy of this order be sent by the office to the Judicial Magistrate, Court No. 8, Allahabad, who is directed to ensure that proper investigation is made after lodging the F.I.R. in pursuance of the impugned order dated 12.11.2008 passed by him on application No. 293/XII of 2008 (Smt. Baby v. Abdul Aziz and others) under Section 156(3), Cr.P.C. P.S. Kareli (Allahabad). ————