The order of the Magistrate directing the police to register an FIR under Section 156(3) CRPC cannot be challenged in revision, reiterates the High Court of J&K.[Read the Judgment]

High-Court-of-J&K
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  • Post published:December 19, 2020
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The High Court of Jammu & Kashmir on Thursday set aside the Order of the Revisional Court whereby the Revisional Court had set aside the order of the learned Magistrate which had passed the order in an application under Section 156(3) CRPC.

The Court while setting aside the order of the revisional court observed that the learned Revisional Court has landed into an error by entertaining the revision petition against the order of learned Magistrate whereby directions were issued to the police to investigate the complaint of petitioners under Section 156(3) of Cr.PC., the Court observed.

Background:

The petitioner had filed an application before the Learned CJM, Jammu under Section 156(3) for registration of an FIR against the Jammu Development Authority (JDA) and had alleged that the JDA came to his land and forcibly demolished the building resulting in loss of movable and immovable property. The learned CJM, Jammu passed an order directing the SHO, Bahu Fort, Jammu to register FIR and conduct an investigation.

What happened in the Criminal Revision Petition before the ‘Revisional Court?’

The order of learned CJM was challenged before the Court of Learned Principal Sessions Judge, Jammu (Revisional Court). The Court set aside the order of the learned CJM, Jammu whereby it had directed the SHO, PS Bahu to register an FIR. While setting aside the order of the learned CJM the Court relied upon the following judgments

Anil Kumar and others vs. M.K. Aiyappa

Criminal Appeal No.1590/2013 (Decided on 1st October, 2013)

Manohar Singh and Anr. vs. State and others

Avinash vs. State of Maharashtra, 2015 SCC Online Bombay 5197

The Grounds on which the order of the revisions court was challenged before the High Court

  1. The question of sanction of prosecution under Section 197 CrPC is only applicable at the time when cognizance of offence is taken and not at the time of registration of FIR.
  2. The order passed by the learned CJM under Section 156(3) CrPC directing registration of FIR is an interlocutory order and revision petition is not maintainable against the interlocutory orders.

The High Court while considering this ground relied upon the following judgments:

  • Manohar Nath Sher vs State of J&K, 1980 KLJ 1
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“Generally speaking, an ‘interlocutory order’ is one which is passed at some intermediate stage of a proceeding to advance the cause of justice, for the final determination of the rights between the parties and are procedural steps taken in an adjudication for assisting the parties in the prosecution of their cases. However, if the decision on an issue brings to an end a suit or proceedings, the order, even, if made at an intermediate stage, would be a ‘final order’ but if the suit or proceeding is still alive, in spite of the order, one way or the other, and has got to be tried in the ordinary way, no finality is normally attached to such an order, at whatever stage during the proceedings it may have been made. Thus, an “interlocutory order made by a Court without jurisdiction, can be interfered with in division at an early stage, because an order without jurisdiction is a nullity in the eye of law and if proceedings are allowed to continue in such a case, the harassment of the litigant, – which the amendment sought to avoid, would be much greater, as he would have to face trial, which ultimately will have to end in his favour. In those cases, the bar of Section 435 (a)(4) CrPC would not be attracted as the acceptance of the plea of the accused would bring those proceedings to an end.”

The Court observed that the interlocutory order means an order which is not a final order. In other words, it means an order which does not terminate any proceeding or which does not determine, either provisionally or finally, the issues arising between the parties.

  • Father Thomas vs. State of U.P. and others, 2011 CriLJ 2278

The Court, after discussing the law on the subject, came to the conclusion that such an order is an interlocutory order and a revision against the same does not lie. It was further held that the order of the Magistrate made in exercise of powers under Section 156(3) of Cr.P.C directing the police to register and investigate a criminal offence is not open to revision at the instance of a person against whom neither cognizance has been taken, nor any process issued and that such an order is an interlocutory order and remedy of revision against such order is barred under Section 397 (2) of Cr.P.C (Central).

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The High Court while relying upon the aforementioned judgments observed that a person, whose application for registration of FIR under Section 156(3), even if rejected by the Magistrate, has an option of either approaching the police directly for registration of FIR or file a criminal complaint before the Magistrate under Section 190 of CrP.C. So far as a suspect named in an application under Section 156 (3) is concerned, he does not have a right to be heard at the time of registration of FIR, either on the basis of information directly lodged before the police or at the time of consideration of an application under Section 156(3) of Cr.P.C. filed before the Magistrate. Having regard to the nature of proceedings under Section 156(3) of Cr.P.C, it can safely be stated that an order passed by a Magistrate under the aforesaid provision, is interlocutory in nature.

Observations and Decision of the High Court:

The learned Revisional Court has landed into an error by entertaining the revision petition against the order of learned Magistrate whereby directions were issued to the police to investigate the complaint of petitioners under Section 156(3) of Cr.PC. The High Court further noted that the learned Sessions Judge has relied upon the judgments delivered by the High Courts of Bombay and Delhi without following the binding precedent of our own High Court (J&K High Court) in Avtar Krishan Deewani’s case.

The Court while disposing of the petition held that the order dated 01.05.2019, whereby the learned Revisional Court had set aside the order dated 15.03.2019 passed by the learned Magistrate, is set aside.

Judgments referred:

HDFC Securities Ltd and others vs. State of Maharashtra and another, (2017) 1 SCC 640

Devarapalll Lakshminarayana vs V.Narayana Reddy & others, 1976 AIR 1672

Avtar Krishan Dewani vs. Anil Dhar, 2014 (2) JKJ 351

Father Thomas vs. State of U.P. and others, 2011 CriLJ 2278

Manohar Nath Sher vs State of J&K, 1980 KLJ 1.

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