Prospective accused can not challenge the order passed by the Magistrate under section 156(3) Cr.P.C. allowing the application and directing investigation by the police.
This verdict has been passed by hon Vijay Kumar Verma,,J. in Crl. Revision No. 63 of 2002, RamDhani v. State of
In Karan Singh Vs. State (1997 (34) ACC 163), it was observed that:
"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."
in the case of Gulam Mustafa @ Jabbar Vs. State of U.P. and others 2008 (61) ACC 922. it was held that:
"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. 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 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 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."
Distinguishing Division Bench ruling in the case of Ajay Malviya Vs. State of U.P., 2000(41) ACC 435,the Allahabad High Court in the case of Rakesh Puri and another Vs. State of U.P. and another 2006 (56) ACC 910 held that:
"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.
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 also 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 the 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."
6 years back My brother got injured on head by assaulted attack of some local goondas police lodged FIR against such goondas . After one year goondas files his application in court under 156(3) on ground of heart beatings after 5 years court take cognizance against my brother without asking ATS report from police . we see this cognizance as legal terror
जवाब देंहटाएंI came across with a situation where, an inexperienced magistrate without applying his juditial mind hastily ordered u/s 156(3) Cr P C and the crime came to be registered against a police officer; there was however, no evidence sufficient to prove the alleged crime. But the complainant joining hands with cheap media people, widely gave publicity in news showing photographs of the accused! The investigation ended in "false". The magistrate was in a way responsible for the defamation of the police officer as he even ignored sec.197 and rather,facilitated the complainant this way; but the law protects such funny acts of the magistrates..you can do nothing.
जवाब देंहटाएंI am giving answer to post of Nandyapa
जवाब देंहटाएंIt is clear that magistrate have power to order investigation U.s.156(3)and u.s202
It can be named investigation at preliminary stage U.S.156(3)
and at later stage U.s202.
While ordering Investigation U.s. 156(3) there is no bar of S.197 bar is at the time of taking cognizance only, while ordering investigation u.156(3) magistrate is not taking cognizance.
Hence in ordering investigation u.s.156 (3) against police officer magistrate not committed any wrong.
Due to lack of knowledge of above legal situation Nandyapa written such words. I think this is sufficient to answer his question.