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5.A. Whether the order of the Magistrate made in exercise of powers under Section 156(3) 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 issued?

B. Whether an order made under Section 156(3) Cr.P.C is an interlocutory order and remedy of revision against such order is barred under sub-section (2) of Section 397 of the Code of Criminal Procedure, 1973?

C. Whether the view expressed by a Division Bench of this Court in the case of Ajay Malviya Vs. State of U.P and others reported in 2000(41) ACC 435 that as an order made under Section 156(3) of the Code of Criminal Procedure is amenable to revision, no writ petition for quashing an F.I.R registered on the basis of the order will be maintainable, is correct?

27.Sri D.S. Mishra on the other hand has placed reliance on the decision of the Apex Court in Raghu Raj Singh Rousha v. Shiva Sundaram Promoters Private limited and another, (2009) 1 SCC (Cri) 801 for making a submission that at the stage of passage of an order under section 156 (3) Cr.P.C, the accused has a right to be heard.

28.It may be noted that the backdrop of Raghu Raj Singh Rousha's case was that the complainant company had filed a complaint petition accompanied by an application under section 156 (3) of the Code before the Metropolitan Magistrate alleging commission of offences under sections 323, 382, 420, 465, 471, 120-B, 506 and 34 IPC against the accused. The Magistrate refused to direct investigation in terms of section 156(3) Cr.P.C, but directed the complainant to lead pre-summoning evidence. The High Court however in a criminal revision against the order of the Magistrate, where only the State was impleaded, without giving any opportunity to the accused to be heard set aside the order of the Magistrate and directed the Magistrate to examine the matter afresh after calling for a police report. The High Court's order was set aside by the Apex Court on two counts. One that there was an infringement of section 401 (2) of the Code as the right of hearing to an accused, or any other person who may be aggrieved mandated by the aforesaid provision, was denied to the aggrieved party as a result of the High Court's order. Two, according to the Apex Court the initial order of the Magistrate, who declined to entertain the application under section 156 (3) of the Code, but directed that the procedure of a complaint case be followed, and that the witnesses be examined under section 200 and 202 Cr.P.C. indicated that cognizance had been taken, hence a right of hearing had accrued to the accused. That would not have been the case, if only a pre-cognizance order of the Magistrate refusing to issue a direction under section 156(3) Cr.P.C. had been challenged in the High Court by the informant, where right of hearing had been denied to the accused in a Criminal Revision. These are the two basic distinctions from a direct order by a Magistrate to the police to investigate an offence. Here the direction under section 156(3) Cr.P.C has not been issued consequent to any direction by the High Court in a criminal revision at the instance of the informant where only the State is made a party, and the aggrieved accused is denied the opportunity of hearing contemplated under section 401(2) Cr.P.C. Also it is a pre-cognizance order only containing a direction of the Magistrate for investigation by the police, where no valuable right has accrued to the prospective accused, which is distinct from the post cognizance order in Rousha's cases, where the Magistrate had decided to follow the procedure of a complaint case under section 200 and 202 Cr.P.C. We therefore find that Rousha's case is no authority for the proposition that any right of hearing accrues to a prospective accused or that any criminal revision is maintainable against an order of the Magistrate simply directing the police officer in-charge of a police station to investigate a case in exercise of powers under section 156(3) of the Code.

32.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 process against the accused. The first question is answered accordingly.

B. Whether an order under Section 156(3) is an interlocutory order and revision against the said order is barred, under Section 397(2) Cr.P.C.

33.It was observed by the learned Single Judge that as no substantive rights and liabilities of the accused are involved at the stage when an order is passed by the Magistrate directing the police merely to investigate into a cognizable offence in exercise of powers under section 156(3) Cr.P.C. and only the informant and the police are in the picture, the said proceedings are purely interocutory in nature, and are not revisable. It is only after investigation when a report under section 173 (2) of the Code is submitted by the police, that the Magistrate makes up his mind whether to take cognizance or to drop the proceedings.

55.In view of the aforesaid, our answer is that the revision against that the order under section 156(3) of the Code directing the police to investigate is clearly an interlocutory order and a Criminal Revision (as also an order under section 482 Cr.P.C against the same) is barred in view of section 397(2) of the Code.

56.C. Whether the view of the division bench in Ajay Malviya's case( supra) that an order under Section 156(3) Cr.P.C was amenable to revision, no writ petition would lie for challenging an FIR lodged pursuant to the order under Section 156(3) Cr.P.C will be maintainable, is correct.