WHETHER Order for registratioN of F.I.R revisable?
The Delhi High Court in a matter
captioned as Ravinder Lal Airi Vs S. Shalu Construction Pvt Ltd bearing no.
WP (Crl) 209/2023 has dealt with the issue as regards the maintainability of
revision petition against direction passed by a Metropolitan Magistrate for
registration of F.I.R u/s 156(3) of Cr.P.C. The ambiguity persisted in this
regard earlier, as the general perception was that, in case, there is direction
to register F.I.R, the said order shall not be revisable and only if the
direction for registration of F.I.R is refused by the ld Magistrate, only that
order shall be revisable. Another aspect that was examined by Hon’be Delhi High
Court was the implication of status report filed by the police in this regard
before the court of a Magistrate, in case, a magistrate seeks the status report
from police. Whether, the Magistrate shall be empowered to act contrary to the
status report and if so what should be the parameter in this regard.
In the above case, the ld Additional
Metropolitan Magistrate had directed the police to register F.I.R. The learned
Sessions Court in the revision petition preferred, in the above case, was of
the view that once, as in this case, the action taken report opined that no
cognizable offence is made out and the matter is civil in nature, for the
learned ACMM to disagree with the opinion of the inquiry officer and order registration
of FIR would require reasons. The order passed by the ld Magistrate while
disagreeing with status report and directing registration of F.I.R was accordingly
set aside by ld Sessions Court and remanded for fresh consideration. The order
passed by the ld Sessions Court was before the hon’ble High Court.
Before delving further,
law/precedents in this regard may be referred to.
LAW
Gujarat High Court
In “Parmar Rameshchandra Ganpatray & Ors. vs. State of Gujarat &
Ors.” in Spl. Criminal Appl. No. 5789/2016, the para 45 and 50 may be read
as under:
“45. The moot question is if a revision application
against mere registration of F.I.R. 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. [See: Amor Nath vs. State
of Haryana (supra)]”
50. In view of the aforesaid discussion, I hold that the
order under Section 156(3) of the Code of Criminal Procedure, 1973 is an
"interlocutory order" and the revision under Section 397 read with
Section 401 of the Cr.P.C. would not lie. At the same time, an order of the
Magistrate rejecting an application under Section 156(3) of the Code for the
registration of a case by the police and for investigation is not an
"interlocutory order". Such an order is amenable to the remedy of a
criminal revision under Sections 397 read with 401 of the Cr.P.C.”
Allahabad High Court
In
a matter captioned as “Father Thomas vs. State of U.P. &
Ors.” in CRL.REV. No. 1581/2001 along with bunch of the petitions, more
particularly para 46 and 54 may be read as under:
“46.
As the direction for investigation passed by the Magistrate under Section
156(3) is purely interlocutory in nature, and involves no substantial rights of
the parties, we are of the view that the bar under Section 397(2) Code of
Criminal Procedure to the entertainment of a criminal revision can also not be
circumvented by moving an application under Section 482 Code of Criminal
Procedure. As observed in State v. Navjot
Sandhu, MANU/SC/0396/2003: (2003) 6 SCC 641, in paragraph 29:
54. As on the basis of the aforesaid reasoning we have
already held the order under Section 156(3) Code of Criminal Procedure not to
be amenable to challenge in a criminal revision or an application under Section
482 Code of Criminal Procedure it is not necessary for this Court to go into
the further question whether the said order is administrative in nature as
urged by Sri G.S. Chaturvedi and the learned Government Advocate or judicial in
nature as contended by Sri D.S. Mishra and Sri Dileep Gupta. Following the
decision of the Apex Court in Asit
Bhattacharjee v. Hanuman Prasad Ojha and Ors., MANU/SC/7676/2007: (2007) 5
SCC 786, we are also not inclined to express any opinion on this issue, and
leave the question open for decision in a subsequent proceeding where an answer
to this question may become necessary.”
Delhi
High Court
The hon’ble Delhi High court has
differed with the high court of Allahabad & Gujarat High Court in Ravinder Lal Airi
(Supra).
The
Delhi High Court has relied upon The Delhi High Court in “Nishu Wadhwa vs. Siddharth Wadhwa &
Anr.” in W.P.(CRL) 1253/2016 on
10.01.2017 wherein it is observed as under:
“13. The issue that since the
accused has not been summoned as
an accused and has no right to file a revision petition is alien, while deciding
an application under Section 156(3) Cr.P.C. The said issue crops up when the
Magistrate entertains the complaint and on taking cognizance proceeds as a
complaint case. In case directions are issued for registration of FIR
immediately, on registration of FIR, the person against whom allegations are
made in the FIR attains the status of an accused. His rights in so far as the Police
can summon him for investigation, arrest him without warrants for allegations
of cognizable offences are duly affected. In a situation where the fundamental
right of freedom and liberty of a person is affected, it cannot be held that he
has no right to be heard at that stage. Thus to hold that since directions only
have been issued under Section 156(3) Cr.P.C. and no cognizance has been taken
thus no revision would lie would be an erroneous reading of the decisions of
the Supreme Court. Therefore, an order dismissing or allowing an application
under Section 156 (3) Cr.P.C. is not an interlocutory order and a revision petition
against the same is
maintainable.”
In Ravinder Lal Airi (Supra), the Delhi
High Court has therefore held that the registration of F.I.R affects the fundamental right and
freedom of the accused person. He can be summoned for investigation, arrested
without warrants for allegations of cognizable offences. Therefore, an order
directing registration of FIR u/s 156(3) Cr.P.C. is held to be not an
interlocutory order and the revision petition against the same would be
maintainable as the accused has a valuable right to be heard.
In “Harpal Singh Arora and Ors.
vs. State and Anr.” 2008 (103) DRJ 282 the Delhi High Court had
formulated the relevant question as “(b)” for rendering answer to that, which
reads as under:
“b”- Is a Magistrate, when approached thereafter by
a complainant with a complaint under
Section 190 read with Section 200 CrPC along with an application under Section
156 (3) Cr.PC seeking a direction for investigation by the police, bound to
deal with the said report before disposing of the application under Section 156
(3) CrPC and proceeding with the complaint under Section 200 CrPC?
The Delhi
High Court had answered the formulated question as “b” in para 16 of Harpal Singh Arora (Supra) and
the same are as under:
16. Considering the fact that the learned MM called for the report
of the CAW Cell, which is fairly detailed, the proper course of action before
ordering an investigation under Section 156 (3) would have been to examine that
report before deciding to issue a direction for investigation. When the police
in the CAW Cell has come to conclusion that no cognizable offence is made out,
the Magistrate cannot brush aside that conclusion lightly. Although that the
said conclusion of the CAW Cell is not binding on the Magistrate at that stage,
since his order is a judicial one he must give reasons, however brief, why he
is inclined to order investigation notwithstanding the said report”.
The Delhi High Court in Ravinder
Lal Airi
(Supra) has therefore held as under:
“19. The MM
directed that “in these facts and
circumstances this Court deems it appropriate to order registration of FIR…”
This order is not showing application of mind as to why and how the ATR has
been considered and the reasons as to why the learned MM has not agreed with
the opinion expressed by the IO that no cognizable offence has been made out.
This aspect has been correctly analysed by the learned Sessions Court in its
revisional jurisdiction”.
The Delhi High Court in Ravinder
Lal Airi
(Supra) has also relied upon a judgment
rendered by Gujarat High Court in paragraph no.17:
17. In “Arvindbhai Ravjibhai Patel vs. Dhirubhai Sambhubhai‟ 1998(1) Crimes 351, the Gujarat High Court took exception
to the growing tendency of asking the police to investigate cases u/s 156(3) of
the Code and advised Magistrate not to pass orders mechanically. It was held:-
“Magistrates should act under Section 156 (3) of the
Code only in those cases where the assistance of
the police is essentially required and the Magistrate is of the considered view
that the complainant on his own may not be in a position to collect and produce evidence in support of the accusation”.
Thus, what clearly emerges from the
aforesaid discussion and from the standpoint o9f law is that order passed u/s
156(3) of Cr.P.C by a ld Magistrate thereby directing registration of F.I.R of
declining to pass direction for registration of F.I.R are revisable orders and
appropriate revision application could be preferred by the aggrieved party or
parties in this regard. Secondly, since the order passed by the Magistrate
shall involve the liberty of a person or persons, therefore, the status report
filed by the police may be duly considered and in case the Magistrate opts to
differ with the status report, the magistrate shall have to give reasons for
differing with such report and the order directing registration of F.I.R
disregarding the status report filed by the police should not be passed in
mechanical manner.
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Anil
K Khaware
Founder & Senior Associate
Societylawandjustice.com
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