Amarnath Agrawal Vs Jai Singh Agrawal & others

Chhatisgarh High Court (Single Judge)

ACQA->ACQUITTAL APPEAL [ APPEAL U/S 378 ], 116 of 20 13 , 149 of 201 4 of 2015, Judgment Date: Feb 10, 2015

1
HIGH COURT OF CHHATTISGARH : BILASPUR
Writ Petition (Cr.) No.116 of 20 13
PETITIONER Amarnath Agrawal
Versus
RESPONDENT S Jai Singh Agrawal & others
And
Writ Petition (Cr.) No.149 of 201 4
PETITIONER Amarnath Agrawal
Versus
RESPONDENT S Jai Singh Agrawal & others
Single Bench : Hon'ble Shri Justice Prashant Kumar Mishra
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Present :- Shri Alok Bakshi, Advocate for the petitioner
Shri R.S. Marhas and Shri Dheeraj Wankhade, Advocates for
the respondent Nos.1 to 4
Shri Arun Sao, Dy. Advocate General for the State.
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O R D E R
(Delivered on this 10th day of February, 2015)
1. These writ petitions under Article 226/227 of the Constitution of
India have been preferred by the petitioner (complainant)
challenging the orders passed by the Sessions Court entertaining
the revision application preferred by the private respondents to
challenge the order passed by the Magistrate under the provisions
of Section 156 (3) of the Code of Criminal Procedure, 1973 (for
short 'the Code').
· WP (Cr.) No.116 of 2013 :- The Magistrate, by its order dated
30.09.2013 has directed registration of First Information
Report (for short 'FIR'), investigation and submission of final
report under Section 173 of the Code. The Revisional
Court/Additional Sessions Judge, Katghora, District Korba,
by the impugned order dated 24.10.2013, has restrained the
Police from proceeding ahead with the matter pursuant to
the Magistrate's order dated 30.09.2013.
· WP (Cr.) No.149 of 2014 :- A similar order was passed by
the Magistrate on 17.07.2014. Against which the revision
application has been entertained by the Additional Sessions
Judge (Fast Track Court), Korba, by order dated 12.08.2014,
but no interim order has been passed.
2. In both the writ petitions, a common question of law has been
raised by the petitioner that an order passed by the Magistrate in
exercise of powers under Section 156 (3) of the Code is not open
to challenge in revisory jurisdiction by the prospective accused,
therefore, the revision application before the Session Judge is not
maintainable. Thus, the Sessions Court ought not to have
entertained the revision and interfered with the process of
registration of FIR and investigation.
3. Since both the petitions raised common question of law, they are
being considered and decided by this common order.
4. Shri Bakshi, learned Counsel appearing for the petitioner, would
submit that at the pre-cognizance stage when only registration of
FIR, investigation and submission of final report has been directed,
the prospective accused has no locus standi to challenge the order
passed by the Magistrate. Learned Counsel would refer to Full
Bench judgment of Allahabad High Court rendered in Father
Thomas v. State of U.P. & Anr.1.
5. Per contra Shri Marhas and Shri Wankhade, learned Counsel
appearing for the respondents, would rely on a Single Bench
Judgment of Delhi High Court rendered in Manohar Singh & Anr.
v. State & Ors.2 to urge that the order passed by the Magistrate
under Section 156 (3) being intermediate order, it is revisable and
the Sessions Court has not committed any error of law by
entertaining the revision applications.
6. To dwell the issue raised by the learned Counsel for the parties, it
would be necessary to refer to the provisions of Section 156 (3) of
the Code. The said provision reads thus:-
“156. Police officer’s power to investigate
cognizable cases.--(1) Any officer in charge of
a police station may, without the order of a
Magistrate, investigate any cognizable case
which a Court having jurisdiction over the local
area within the limits of such station would have
power to inquire into or try under the provisions
of Chapter XIII.
(2) No proceeding of a police officer in any
such case shall at any stage be called in
question on the ground that the case was one
which such officer was not empowered under
this section to investigate.
(3) Any Magistrate empowered under section
190 may order such an investigation as
above-mentioned.
7. Under sub-section (1) of Section 156 the officer in charge of a
jurisdictional police station has power to investigate any cognizable
12011 Cri.L.J.2278
2Crl. M.C.1952 of 2009 (decided on 10.04.2013)
case and under sub-section (2) such proceedings of a police officer
shall not be called in question on the ground that the case was one
which such officer was not empowered to investigate. Under
sub-section (3), any Magistrate empowered under Section 190
may order for an investigation by the officer in charge of the
jurisdictional police station as mentioned under sub-section (1) of
Section 156 of the Code.
8. In both the cases pending before the Magistrate, the petitioner has
not filed any complaint under Section 200 of the Code, but only
moved the applications under Section 156 (3) for a direction to the
concerned police for registration of FIR, investigation and
submission of final report.
9. The issue as to whether at the pre-cognizance stage or at the
stage of investigation by the police the prospective accused has a
right of hearing has been dealt with by the Supreme Court in the
following cases
10. In Union of India and another v. W.N. Chadha3, the Supreme
Court held thus :
“92. More so, the accused has no right to have
any say as regards the manner and method of
investigation. Save under certain exceptions
under the entire scheme of the Code, the
accused has no participation as a matter of right
during the course of the investigation of a case
instituted on a police report till the investigation
culminates in filing of a final report under Section
173(2) of the Code or in a proceeding instituted
otherwise than on a police report till the process
is issued under Section 204 of the Code, as the
case may be. Even in cases where cognizance
3AIR 1993 SC 1082
of an offence is taken on a complaint
notwithstanding that the said offence is triable by
a Magistrate or triable exclusively by the Court
of Sessions, the accused has no right to have
participation till the process is issued. In case
the issue of process is postponed as
contemplated under Section 202 of the Code,
the accused may attend the subsequent inquiry
but cannot participate. There are various judicial
pronouncements to this effect but we feel that it
is not necessary to recapitulate those decisions.
At the same time, we would like to point out that
there are certain provisions under the Code
empowering the Magistrate to give an
opportunity of being heard under certain
specified circumstances.”
(Emphasis supplied)
11. The Supreme Court in Sri Bhagwan Samardha Sreepada
Vallabha Venkata Vishwanandha Maharaj v. State of A.P. and
others4, held thus :
“11. In such a situation the power of the court
to direct the police to conduct further
investigation cannot have any inhibition. There is
nothing in Section 173(8) to suggest that the
court is obliged to hear the accused before any
such direction is made. Casting of any such
obligation on the court would only result in
encumbering the court with the burden of
searching for all the potential accused to be
afforded with the opportunity of being heard. As
the law does not require it, we would not burden
the Magistrate with such an obligation.”
(Emphasis supplied)
12. In Central Bureau of Investigation and another v. Rajesh
Gandhi and another5, the Supreme Court held thus :
“8. There is no merit in the pleas raised by the
first respondent either. The decision to
investigate or the decision on the agency which
should investigate, does not attract principles of
natural justice. The accused cannot have a say
4(1999) 5 SCC 740
5AIR 1997 SC 93
in who should investigate the offences he is
charged with. We also fail to see any provision
of law for recording reasons for such a
decision.......”
(Emphasis supplied)
13. In view of the above pronouncements of the Supreme Court, the
law appears to be well settled that at the stage of investigation by
the police either under Section 156 (1) when the jurisdictional
Station House Officer proceeds to investigate the matter of his own
or under Section 156 (3) when he does so under the order of
jurisdictional Magistrate, the prospective accused has no right of
hearing.
14. In Lalita Kumari v. Government of Uttar Pradesh and Others6,
the Supreme Court, while dealing with the power of in-charge of a
police station with respect to registration of FIR when he receives
an information disclosing a cognizable offence, has held that the
registration of FIR is mandatory under Section 154, if the
information discloses commission of a cognizable offence and no
preliminary enquiry is permissible in such a situation. Such
preliminary enquiry may be conducted only when the information
does not disclose a cognizable offence but indicates the necessity
for an enquiry and when after such enquiry commission of such
cognizable offence is disclosed the FIR must be registered.
Nothing has been laid down by the Supreme Court that at the
stage of registration of FIR or an enquiry to assert commission of
cognizable offence, the prospective accused would have a right of
6(2014) 2 SCC 1
hearing or would have locus standi to challenge the registration of
FIR.
15. The question, therefore, would arise as to when law does not
recognize any such right in favour of a prospective accused at the
time of registration of FIR or investigation, the Sessions Court
would have power to entertain a revision application against an
order passed by the Magistrate under Section 156 (3) of the Code.
Under this provision the Magistrate only directs the jurisdictional
Station House Officer to do what he is obliged in law under
Sections 154 or 156 (1) of the Code.
16. The moot question is if a revision application against mere
registration of FIR by the police is not maintainable whether such
revision would be held maintainable when the Magistrate only
directs registration of FIR. In the opinion of this Court, the answer
is an emphatic No. Exercise of revisory power conferred by the
Court under Section 397 read with Section 401 of the Code would
occasion when there is an order passed by the competent court,
which is not interlocutory in nature, however, the said power
cannot be exercised to quash the FIR or investigation because
such power can be exercised only by the High Court under Section
482 of the Code or under Article 226/227 of the Constitution of
India. If the revision application is considered to be maintainable
before the Sessions Court against an order passed by the
Magistrate under Section 156 (3) and if such revision is allowed it
would have effect of quashing the FIR, therefore, if the Sessions
Court has no such powers otherwise, it cannot do so by
entertaining a revision against an order passed by the Magistrate
under Section 156 (3) of the Code.
17. Referring to its earlier decisions in Devarapalli Lakshminarayana
Reddy and Others v. V. Narayana Reddy and Others7 and Tula
Ram and Others v. Kishore Singh8, the Supreme Court in
Srinivas Gundluri and Others v. Sepco Electric Power
Construction Corporation and Others9 has held that when a
Magistrate orders investigation under Section 156 (3) of the Code
without examining merits of the claim, the Magistrate does not
bring into motion the machinery of Chapter XV of the Code,
therefore, the Magistrate has not taken cognizance of the matter,
and, as such, when such direction for investigation is made, the
Magistrate does not commit any illegality. Even after receipt of
such report, the Magistrate under Section 190 of the Code may or
may not take cognizance of the offence. Thus, at the stage of
directing investigation the Magistrate having not applied its mind as
it has not taken cognizance of the matter, there is no order of the
Magistrate which can be revised under Section 397 read with
Section 401 of the Code. What is revisable under Section 397 of
the Code is the correctness, legality or propriety of any finding,
sentence or order, recorded or passed, and as to the regularity of
7(1976) 3 SCC 252
8(1977) 4 SCC 459
9(2010) 8 SCC 206
any proceeding of such inferior court against whose order the
revision application has been preferred. When there is no finding,
sentence or order against the accused, the same is not revisable
under Section 397 of the Code.
18. In Naresh Kavarchand Khatri v. State of Gujarat and Another10,
the Supreme Court in para 6 held thus :
“6. The power of the court to interfere with an
investigation is limited. The police authorities, in
terms of Section 156 of the Code of Criminal
Procedure, exercise a statutory power. The
Code of Criminal Procedure has conferred
power on the statutory authorities to direct
transfer of an investigation from one police
station to another in the event it is found that
they do not have any jurisdiction in the matter.
The court should not interfere in the matter at an
initial stage in regard thereto. If it is found that
the investigation has been conducted by an
investigating officer who did not have any
territorial jurisdiction in the matter, the same
should be transferred by him to the police
station having the requisite jurisdiction.”
19. The Supreme Court in Dharmeshbhai Vasudevbhai and Others
v. State of Gujarat and Others11, in paras 8, 9 & 10, has held
thus :
8. Interference in the exercise of the
statutory power of investigation by the police by
the Magistrate far less direction for withdrawal of
any investigation which is sought to be carried
out is not envisaged under the Code of Criminal
Procedure. The Magistrate’s power in this
regard is limited. Even otherwise, he does not
have any inherent power. Ordinarily, he has no
power to recall his order. This aspect of the
matter has been considered by this Court in
S.N. Sharma v. Bipen Kumar Tiwari wherein the
10(2008) 8 SCC 300
11(2009) 6 SCC 576
law has been stated as under: (SCC pp. 656-57,
paras 6-7)
“6. Without the use of the expression ‘if he
thinks fit’, the second alternative could have
been held to be independent of the first; but
the use of this expression, in our opinion,
makes it plain that the power conferred by
the second clause of this section is only an
alternative to the power given by the first
clause and can, therefore, be exercised
only in those cases in which the first clause
is applicable.
7. It may also be further noticed that, even
in sub-section (3) of Section 156, the only
power given to the Magistrate, who can
take cognizance of an offence under
Section 190, is to order an investigation;
there is no mention of any power to stop an
investigation by the police. The scheme of
these sections, thus, clearly is that the
power of the police to investigate any
cognizable offence is uncontrolled by the
Magistrate, and it is only in cases where
the police decide not to investigate the
case that the Magistrate can intervene and
either direct an investigation, or, in the
alternative, himself proceed or depute a
Magistrate subordinate to him to proceed to
enquire into the case. The power of the
police to investigate has been made
independent of any control by the
Magistrate.”
9. Interpreting the aforementioned provisions
vis-à-vis the lack of inherent power in the
Magistrate in terms of Section 561-A of the old
Criminal Procedure Code (equivalent to Section
482 of the new Code of Criminal Procedure), it
was held: (S.N. Sharma case3, SCC p. 657,
para 10)
“10. This interpretation, to some extent,
supports the view that the scheme of the
Criminal Procedure Code is that the power
of the police to investigate a cognizable
offence is not to be interfered with by the
judiciary. Their Lordships of the Privy
Council were, of course, concerned only
with the powers of the High Court under
Section 561-A CrPC, while we have to
interpret Section 159 of the Code which
defines the powers of a Magistrate which
he can exercise on receiving a report from
the police of the cognizable offence under
Section 157 of the Code. In our opinion,
Section 159 was really intended to give a
limited power to the Magistrate to ensure
that the police investigate all cognizable
offences and do not refuse to do so by
abusing the right granted for certain limited
cases of not proceeding with the
investigation of the offence.”
10. Yet again in Devarapalli Lakshminarayana
Reddy v. V. Narayana Reddy this Court, upon
comparison of the provision of the old Code and
the new Code, held as under: (SCC p. 258, para
17)
“17. Section 156(3) occurs in Chapter XII,
under the caption: ‘Information to the police
and their powers to investigate’; while
Section 202 is in Chapter XV which bears
the heading: ‘Of complaints to Magistrates’.
The power to order police investigation
under Section 156(3) is different from the
power to direct investigation conferred by
Section 202(1). The two operate in distinct
spheres at different stages. The first is
exercisable at the pre-cognizance stage,
the second at the post-cognizance stage
when the Magistrate is in seisin of the
case. That is to say in the case of a
complaint regarding the commission of a
cognizable offence, the power under
Section 156(3) can be invoked by the
Magistrate before he takes cognizance of
the offence under Section 190(1)(a). But if
he once takes such cognizance and
embarks upon the procedure embodied in
Chapter XV, he is not competent to switch
back to the pre-cognizance stage and avail
of Section 156(3). It may be noted further
that an order made under sub-section (3)
of Section 156, is in the nature of a
peremptory reminder or intimation to the
police to exercise their plenary powers of
investigation under Section 156(1). Such
an investigation embraces the entire
continuous process which begins with the
collection of evidence under Section 156
and ends with a report or charge-sheet
under Section 173. On the other hand,
Section 202 comes in at a stage when
some evidence has been collected by the
Magistrate in proceedings under Chapter
XV, but the same is deemed insufficient to
take a decision as to the next step in the
prescribed procedure. In such a situation,
the Magistrate is empowered under
Section 202 to direct, within the limits
circumscribed by that section an
investigation ‘for the purpose of deciding
whether or not there is sufficient ground for
proceeding’. Thus the object of an
investigation under Section 202 is not to
initiate a fresh case on police report but to
assist the Magistrate in completing
proceedings already instituted upon a
complaint before him.”
(Emphasis supplied)
20. The Supreme Court in Kishan Lal v. Dharmendra Bafna and
Another12, it has been held that the power of investigation is a
statutory one and ordinarily and save and except some exceptional
situations, no interference therewith by any Court is permissible.
21. The legal position which would emerge from the above referred
judgments of the Supreme Court is as follows:-
 Investigation into a cognizable offence by Incharge
of jurisdictional police station is a statutory power.
Once an information is sent to the jurisdictional
police regarding commission of a cognizable
offence, it is the statutory duty of the said police to
investigate offence. {Lalita Kumari (supra)}.
12(2009) 7 SCC 685
 The accused has no right to have any say as
regards the manner and method of investigation of
an offence. {W.N. Chadha (supra), Sri Bhagwan
Samardha Sreepada Vallabha Venkata
Vishwanandha Maharaj (supra) and Rajesh
Gandhi (supra)}.
 The power of the Court to interfere with the
investigation is limited. {Naresh Kavarchand
Khatri (supra)}.
 Under Section 156 (3) of the Cr.P.C. Magistrate is
conferred limited power to ensure that the police
investigate all cognizable offences and do not
refuse to do so by abusing the right granted for
certain limited cases of not proceeding with the
investigation of the offence {Dharmeshbhai
Vasudevbhai (supra)}.
 Exercise of power by a Magistrate under Section
156 (3) is at the pre-cognizance stage. Such
exercise is done by the Magistrate when the
concerned police officer fails to investigate the
matter as is obligatory upon him.
 To exercise revisory power under Section 397, the
Court whose order is sought to be revised must
have recorded some finding, order or sentence or
have drawn a proceeding which is ex facie illegal
or without jurisdiction. While directing the police
officer to investigate the matter the Magistrate
neither records any finding nor passes any order or
sentence against the accused because at that
stage the registration of FIR is only against the
prospective accused.
 If it is held that an order under Section 156 (3) of
the Code is revisable, the same would amount to
clothing the Sessions Court with the power of
quashing the FIR or investigation. Such power is
conferred only on the High Court under Section
482 of the Code or under Article 226/227 of the
Constitution of India.
22. For the foregoing, this Court has no hesitation in holding that the
revision petitions preferred by the private respondents before the
Courts of the Additional Sessions Judge, Katghora, District Korba
and Additional Sessions Judge (Fast Track Court) Korba are not
maintainable. Accordingly, the impugned orders dated 24.10.2013
& 12.08.2014 challenged in WP (Cr.) Nos.116 of 2013 & 149 of
2014, respectively, are quashed.
23. As a sequel, both the writ petitions are allowed, leaving the parties
to bear their own costs.
J U D G E
Gowri
15
HIGH COURT OF CHHATTISGARH : BILASPUR
Writ Petition (Cr.) No.116 of 20 13
PETITIONER Amarnath Agrawal
Versus
RESPONDENT S Jai Singh Agrawal & others
And
Writ Petition (Cr.) No.149 of 201 4
PETITIONER Amarnath Agrawal
Versus
RESPONDENT S Jai Singh Agrawal & others
Post for pronouncement of orders on the ____ day of February, 2015
J u d g e
-2-2015