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(Emphasis mine and Supplied)

14. In para 16 thereof the apex court has laid down the law, in respect of the power of Magistrate under Section 156(3) Cr.P.C. as follows:

We therefore reiterate, that the magisterial power can not be stretched under the said sub' section beyond directing the officer in charge of a police station to conduct the investigation (Emphasis mine and supplied)

15. The above quoted passages unequivocally brines out the ambit of power of Magistrate under Section 156(3) Cr.P.C. Under the said section the Magistrate does not take the cognizance of the offence himself and the power is wielded by him at the pre cognizance stage falling under chapter XII relating to the power of the police to investigate into the cognizable offence. Thus at the stage of Section 156(3) Cr.P.C, a person against whom an application under the said section is filed does not come into the picture at all to participate in the proceedings. 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 got no right to participate in the said ex-parte proceeding. If permitted this will amount to killing of foctus of investigation in the womb when it was not there at all. Such a power has not been conferred under the law on the prospective accused. See Hari Raj Singh v. State of U.P. 2000 (46)ACC 1180 Brijesh v. State of U.P. and Ors. 1997 (34) ACC 687 Father Thomas v. State of U.P. and Ors. 2002 (44) ACC 143. Further at the stage of Section 156(3) Cr.P.C. which is a pre cognizance stage there is no body who is an accused. The character of being an accused will be implanted on a person only by registration of the FIR by the police or by taking cognizance by the Magistrate of the offence and summoning of the person as an accused under Section 204 Cr.P.C. Thus no person can be bestowed with a right to challenge an order for registration and investigation of offence passed under Section 156(3) Cr.P.C. when he is not even an accused. Another reason for taking this view is that order under Section 156(3) Cr.P.C. can be passed by the 'Executive Magistrate' as well. The words "Any Magistrate" under that Sub-section includes 'Executive Magistrate' also and such an order if passed by the 'Executive Magistrate' will certainly be an interlocutory order barred under Section 397(2) Cr.P.C. from being challenged under Section 397(1) Cr.P.C. which conferres revisional powers on high court as well on Session's Judge. The third reason for taking this view is that Cr.P.C. does not permit the accused to challenge any order at every stage of proceedings. There are certain stages in which even though judicial orders are passed but the person aggrieved has no right to challenge the order even on the pretext that his Fundamental Rights are being infringed. As exemplars, I refer, that an accused does not have a right to challenge the registration of a complaint and taking cognizance on it by the Magistrate, recording of statements under Section 200 and 202 Cr.P.C, issuing of bailable and non-bailable warrants, registration of charge sheet after investigation under Section 173 Cr.P.C, granting of adjournments, exemption of accused, fixing dates for evidences, recording of statement under Section 313 Cr.P.C., directing for further investigation by the police under Section 173(8) Cr.P.C. etc. etc. All these types of orders and many such other orders are all judicial orders passed in a judicial proceeding but they are not subjected to the revisional powers of the courts under Section 397(1) Cr.P.C. at the instance of the accused. If an accused does not have a right to participate in a proceeding at the stage of Section 156(3) Cr.P.C. it is incomprehensible that he has power to challenge order passed under that section more so order for registration of FIR which is different from investigating the offences, if any, disclosed by the said FIR. In the case of Bhajan Lal (Supra) while laying down the guidelines for quashing of the FIR the apex court has not conferred the power on the accused to challenge the registration of FIR against him. This matter has come up before the apex court in the case of Janta Dal v. H.S. Chowdhary and Ors. 1993 SCC(Cr) 36 (Known as Bofor's case) where the apex court denounced the practice of lower court in issuing of notice on the registration of FIR under Section 397(1) or 482 Cr.P.C. In the said case the revisional court because of various illegalities had taken suo motu cognizance and had issued notice to C.B.I. to show cause as to why the FIR and the proceeding subsequent thereto be not quashed. The apex court in the concluding part of it's judgment quashed the order of revisional court under Section 397 and 401 read with Section 482 Cr.P.C. taking suo motu cognizance. In the same case apex court has approved the judgment of Kekoo J. Maneckji v. Union of India 1980 Cr.LJ.258(Bom) in para 156 thereof in which it has been held as follows:

The first information report dated 6.8.1998 on the basis of which case crime No. 743 of 1998 under Section 406/420 IPC has been registered at police station Chakeri, district Kanpur Nagar is sought to be quashed by means of this writ petition under Article 226 of the Constitution. A direction not to arrest the petitioner in the case aforestated during the course of investigation has also been sought besides the relief of certiorari.

17. Thus the petitioner in that case was seeking an extra ordinary Constitutional remedy conferred on him under Article 226 of The Constitution Of India. He was not seeking a legal remedy provided under Cr.P.C. To avail of a legal remedy it has to be specifically provided for by the concerned Statute and such a remedy is governed by the provisions contained therein. If a statute prohibits the claimed legal remedy then the aggrieved person cannot avail of it. Secondly, the Division Bench in that case completely over looked the provisions of Section 397(1)& (2) Cr.P.C especially Sub-section (2) thereof which prohibits maintainability of a revision in cases of interlocutory orders. The aforesaid Division bench did not at all considered the said section before recording a finding that the revision is maintainable against the order passed under Section 156(3) Cr.P.C. It concentrated only on one aspect of the matter and that was that the order passed under Section 156(3) Cr.P.C. is a judicial order and hence amenable to revisional jurisdiction. This view by the said Division Bench, with profound respect, is in direct conflict with Section 397(2) Cr.P.C. in as much as all interlocutory orders are judicial orders passed in a judicial proceeding but they all are not subjected to revisional powers of the courts under Section 397(1) Cr.P.C. Registration of a complaint, Ordering for further investigation under Section 173(8) Cr.P.C by a Magistrate after receiving a report from the police under Section 173(1), registration of charge sheet submitted by the police under Section 173(2), issuance of non bailable warrant, issuance of process under Section 82-83 Cr.P.C, recalling a witness, granting bail and cancellation thereof, asking the complainant to produce evidence under Sections 200 and 202 Cr.P.C. granting of adjournments, exemptions of accused, giving dates in the cases, order for framing of charge, recording of statement under Section 313 Cr.P.C. fixing dates for evidences, order for committal of cases to the court of Session's and many more such orders are all judicial orders passed in a judicial proceeding but they are not subjected to revisional powers under Section 397/401 Cr.P.C. and in fact are barred by Section 397(2) Cr.P.C. This very important aspect of the matter which was sine qua non for deciding the question of maintainability of a revision at the instance of accused against the order passed under Section 156(3) Cr.P.C. and was relevant and germane to the controversy was not considered at all by the said Division Bench. Let me point out here that under Section 156(3) Cr.P.C. there was no proceeding between the litigating parties and no such proceeding was finalised. No inquiry or trial was held between two parties. Under that section it is only an administrative power which is being exercised by the Magistrate ex parte being superior, authority to direct the police to register and investigate the offence. Such an order is pure and simple interlocutory order barred under Section 397(2) Cr.P.C. from being revised. Thirdly, the said Division Bench also failed to notice that the word "Proceeding" mentioned under Section 397(1) Cr.P.C. does not embraces within it's purview all proceedings even exparte proceeding in which the other side even does not have the right to participate and to be heard. At the stage of Section 156(3) Cr.P.C. the prospective accused cannot be heard at all and once he cannot be heard how can he challenge the said order. The word "Proceeding" under Section 397(1) Cr.P.C. means the "Proceedings" which is final in nature and in which both the sides had got a right to be heard whether they have in fact been heard or not. It is because of this reason that recently the Apex court in the case of Subarmaniyam Sethuraman v. State of Maharastra 2005 SCC (Cr) 242 has held that even an order of summoning of an accused is not amenable to revisional jurisdiction. The same view was expressed by this Court in the case of Atul Kumar Mathur and Ors. v. State of UP and Ors. 1994 ACC 535. Thus the accused who does not have a legal right to participate in the proceeding under Section 156(3) Cr.P.C. certainly can not be conferred with the right to challenge the order passed under that section. The Apex Court has held that the accused has got such a right of challenge only after he has been summoned as an accused in the case by the trial court to face the charge after the charge sheet is submitted against him. See Janta Dal v. H.S. Chowdhary(Supra). The apex court has held in many other decisions that the accused has no right to be heard before he is summoned. In Nagawwa v. V.S. Konjalgi 1976 (13) ACC 225 The apex court has observed thus:

26. 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 to secure the ends of justice it is a must 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. It is out side the purview of scope of Section 397(1) Cr.P.C. to embrace any proceeding which is not final in nature and in which the other side has no right to be heard. Proceeding under Section 156(3) Cr.P.C. is not such a proceeding and it is conducted only for a limited purpose of ordering for an investigation by the police, ex-parte, if cognizable offence is disclosed through such an application. The Magistrate under that section is required to scan the application or the complaint only to find out as to whether any cognizable offence is disclosed or not and no further. No doubt, as has been held by me herein before, that the order under Section 156(3) Cr.P.C. is a judicial order but it is administrative in nature because of it's placement under chapter XII Cr.P.C. relating to power of the police to investigate a matter. The Division Bench in Ajai Malviya's case(Supra) did not at all addressed itself to the said aspect of the matter in conjunction with the scope of Section 154(1) and 156(1) Cr.P.C. and the law laid down by the apex court in the case of State of Haryana v. Bhajan Lal 1992 SCC (Cr) 347(Supra) and also in the case of Central Bureau of Investigation. Through S.P. Jaipur v. State of Rajasthan and Anr. 2001 SCC (Cr) 524. (Supra). Forthly, the accused can not be allowed to challenge each and every order at every stage of judicial proceedings as has been discussed by me in this judgment herein before.. Fifthly, the order under Section 156(3) Cr.P.C. is a pre cognizance stage order as has been held by the Apex court in the case of Devarapalli Lakshaminarayana Reddy and Ors. v. V. Naravana Reddv and Ors. 1976 ACC 230 and recently in the case of Suresh Chand Jain v. State of Madhya Pradesh and Anr. . In the case of Devarapalli (Supra) the Apex Court has gone to the extent in observing that the nature of order under Section 156(3) Cr.P.C. is:

29. Thus it is clear the under Section 156(3) Cr.P.C. the Magistrate can only direct registration and investigation of the offences by the police. Can such an order revisable under Section 397 Cr.P.C.? The answer is emphatic No. The accused no where comes into picture at that stage. Such a nature of order if allowed to be subjected to the revisional powers of the court under Section 397 Cr.P.C. then it will defeat the very purpose of Section 156(3) Cr.P.C. for which it has been enacted in the Code and will open 'Tsunamis' for the revisional courts and no investigation will be allowed to proceed. This was never the intention of the Legislature and framers of law. The aggrieved accused has been conferred the right to be heard at the appropriate stage by the Cr.P.C. and that certainly does not include the stage of Section 156(3) Cr.P.C. Resultantly an order under Section 156(3) is not revisable under Section 397(1) Cr.P.C. The Division Bench in Ajai Malviya's case (Supra) even though took a note of the observations made by the Apex Court in the case of Devarapalli Lakshaminarayana Reddy and Ors. but went contrary to it in holding that the revision lay against order under Section 156(3) Cr.P.C. at the instance of an accused, which view is the very ante thesis of the observation made by the Apex Court in the said Judgment. With due respect to the Judges of the said division bench case they have made a casual observation even with out looking to Section 397 Cr.P.C. which deals with revisional powers of the High Court as well as of the Sessions's Court before making such casual observation that the revision lay against the order passed under Section 156(3) Cr.P.C. The division bench, with profound respect did not examine the scope of revisional powers of the courts at all. In the case of Suresh Chand Jain (Supra) has been held by the Apex court that: