Thursday, 14 April 2016

Whether order for police investigation U/S 156 of CRPC is revisable?

Insofar as the question framed by us is concerned,
we find that there is a passing reference in paragraph
no.31  made  by  the  Division  Bench  about  availability of
several efficacious alternative statutory remedies under
the Criminal  Procedure  Code to  challenge  the  order  u/s
156(3).  We think though it is obiter dicta, nevertheless
the same is binding on us as we respectively agree with
the said view, for the above reasons that the order u/s
156(3) of the Code not being an interlocutory order, but
being   a   final   order   in   a  proceeding   u/s   156(3)   of   the
Code   would   certainly   be   revisable   under   the   revisional
powers   of   the   Sessions   Court   or   the   High   Court.     The
Division Bench in the case of   B.S. Khatri v. State of

Maharashtra & another (supra), however, clearly held that
the exercise of extraordinary jurisdiction under Article
226   of   the   Constitution   should   not   be   made   for
considering the challenge to order u/s 156(3) of the Code
with   which   again   we   respectfully   agree.     We,   however,
state that the bar to exercise extraordinary jurisdiction
under Article 226 of the Constitution is the one of self imposed
  rule.     We,   however,   hold   that   the   order   u/s
156(3)   of   the   Code   not   being   an   interlocutory   order,
would   obviously   be   revisable.     We   thus   hold   that   the
order u/s 156(3) of the Code of Criminal Procedure, 1973,
is   not   an   interlocutory   order,   but   is   a   final   order
terminating   the   proceeding   u/s   156(3)   of   the   Code   and
that   the   revision   u/s   397   or   Section   401   of   the   Code
would lie.  
          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD      
            
CRIMINAL WRIT PETITION NO.159 OF 2014

Avinash S/o Trimbakrao Dhondage,

Versus
 The State of Maharashtra,

CORAM: A.B. CHAUDHARI & 
   INDIRA K. JAIN, JJ.
  

JUDGMENT PRONOUNCED ON : 21.10.2015 
Citation;2016 ALLMR(CRI)985

1] The   question   that   falls   for   consideration   before
this Court is as under:
“Whether   the   order   made   by   the
Magistrate  u/s 156(3) of  the Code of
Criminal   Procedure,   1973,   directing
Police to make investigation  would be
an   interlocutory   order   ?   If   no,
whether remedy of revision u/s 397 or
Section   401   of   the   Code   of   Criminal
Procedure, 1973, would lie ?
2]     The   question   has   arisen   for   consideration   as
challenge to the order made by the Magistrate u/s 156(3)
of   the   Code   of   Criminal   Procedure,   1973   (hereinafter
referred to as the 'Code' for brevity), has been raised
in these matters either by way of Criminal Writ Petitions

under Articles 226 and 227 of the Constitution of India
or u/s 482 of the Code with the submission that there is
no remedy of filing revision either before the Sessions
Court or this Court since the order u/s 156(3) would be
an interlocutory order.
3]     The   learned   counsel   for   the   applicants   /
petitioners   relied   on   the   decision   in   the   case   of
Dr.Shriram   Mukundrao   Kalyankar   v.   State   of   Maharashtra
(2015 ALL MR (Cri) 2484) and it is submitted that it is
held   by   the   learned   Single   Judge   of   this   Court   in
paragraph nos.4 and 5 of the said decision that revision
challenging   the   order   u/s   156(3)   of   the   Code   is   not
maintainable.  We have perused the reasoning in paragraph
nos.4 and 5 of the said judgment and we find that the
reason assigned is that such an order u/s 156(3) of the
Code was not an order issuing process but only an order
issuing directions for investigation.  There is no other
reason   given   for   holding   that   the   revision   was   not
maintainable.  
4]   Section 156 in entirety reads thus:

“156.   Police   officer's   power   to   investigate
cognizable case :
(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   abovementioned.”
5]     Section   202   Sub­section   (1)   of   the   Code   reads
thus:
“202. Postponement of issue of process :
(1) Any   Magistrate,   on   receipt   of   a   complaint
of an offence of which he is authorised to take
cognizance   or   which   has   been   made   over   to   him
under   section   192,   may,   if   he   thinks   fit,

postpone   the   issue   of   process   against   the
accused, and either inquire into the case himself
or direct an investigation to be made by a police
officer or by such other person as he thinks fit,
for the purpose of deciding whether or not there
is sufficient ground for proceeding:
    Provided   that   no   such   direction   for
investigation shall be made,­­
(a) where it appears to the Magistrate that
the   offence   complained   of   is   triable
exclusively by the Court of Session; or
(b) where the complaint has not been made by
a   Court,   unless   the   complainant   and   the
witnesses   present   (if   any)   have   been
examined on oath under section 200.”
     (emphasis supplied)
6] Section 156(3) of the Code is in Chapter XII while
Section 200, including Section 202, falls in Chapter XV.
7]  In the case of Devarapalli Lakshminarayana Reddy &
others v. V. Narayana Reddy & others (AIR 1976 SC 1672),
a   three   Judges   Bench   of   the   Apex   Court   held   thus   in
paragraph no.17 as under:
“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   It   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   pre­cognizance   stage,   the
second   at   the   post­cognizance   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   pre­cognizance
stage   and   avail   of   Section   156(3).   It   may   be
noted   further   that   an   order   made   under   subsection
(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 chargesheet
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 here 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.” 
8]   The   Supreme   Court   then   further   clarified   the
position   about   the   role   of   the   Police   Officer   upon
passing of the order u/s 156(3) of the Code in paragraph
nos.8, 9 and 10 of the decision in the case of  Suresh
Chand Jain v. State of M.P. & another (2001) 2 SCC 628,
as under :
“8. The   investigation   referred   to   therein   is
the   same   investigation   the   various   steps   to   be
adopted for it have been elaborated in Chapter XII
of the Code. Such investigation would start with
making   the   entry   in   a   book   to   be   kept   by   the
officer­in­charge   of   a   police   station,   of   the
substance   of   the   information   relating   to   the
commission   of   a   cognizable   offence.   The
investigation   started   thereafter   can   end   up   only

with the report filed by the police as indicated
in   Section   173   of   the   Code.   The   investigation
contemplated in that Chapter can be commenced by
the police even without the order of a Magistrate.
But   that   does   not   mean   that   when   a   Magistrate
orders   an   investigation   under   Section   156(3)   it
would be a different kind of investigation. Such
investigation   must   also   end   up   only   with   the
report   contemplated   in   Section   173   of   the   Code.
But the significant point to be noticed is, when a
Magistrate orders investigation under Chapter XII
he   does   so   before   he   takes   cognizance   of   the
offence. 
9. But   a   Magistrate   need   not   order   any   such
investigation if he proposes to take cognizance of
the   offence.   Once   he   takes   cognizance   of   the
offence he has to follow the procedure envisaged
in Chapter XV of the Code. A reading of Section
202(1)   of   the   Code   would   convince   that   the
investigation referred to therein is of a limited
nature.   The   Magistrate   can   direct   such   an
investigation   to   be   made   either   by   a   police
officer or by any other person. Such investigation
is   only   for   helping   the   Magistrate   to   decide
whether or not there is sufficient ground for him
to proceed further. This can be discerned from the
culminating words in Section 202(1) i.e. or direct
an investigation to be made by a police officer or
by such other persons as he thinks fit, for the

purpose   of   deciding   whether   or   not   there   is
sufficient ground for proceeding. This is because
he   has   already   taken   cognizance   of   the   offence
disclosed in the complaint, and the domain of the
case would thereafter vest with him. 
10.   The   position   is   thus   clear.   Any   Judicial
Magistrate,   before   taking   cognizance   of   the
offence,   can   order   investigation   under   Section
156(3) of the Code. If he does so, he is not to
examine the complainant on oath because he was not
taking cognizance of any offence therein. For the
purpose   of   enabling   the   police   to   start
investigation   it   is   open   to   the   Magistrate   to
direct   the   police   to   register   an   FIR.   There   is
nothing   illegal   in   doing   so.   After   all
registration of an FIR involves only the process
of   entering   the   substance   of   the   information
relating   to   the   commission   of   the   cognizable
offence in a book kept by the officer­in­ charge
of the police station as indicated in Section 154
of the Code. Even if a Magistrate does not say in
so many words while directing investigation under
Section 156(3) of the Code that an FIR should be
registered,   it   is   the   duty   of   the   officer­incharge
of the police station to register the FIR
regarding the cognizable offence disclosed by the
complaint   because   that   police   officer   could   take
further steps contemplated in Chapter XII of the
Code only thereafter.”

9]   From  the  two  decisions  quoted   above,  it  is  clear
that after making of the order u/s 156(3) of the Code, it
is   the   duty   of   the   officer­in­charge   of   the   Police
Station   to   register   FIR   regarding   cognizable   offence
disclosed by the complaint and then to proceed to make
investigation,  which  would  end  up  only  with the report
contemplated   in   Section   173   of   the   Code.     It   is
noteworthy   that   the   Magistrate,   after   having   made   an
order u/s 156(3) of the Code does not have any control on
the   manner   of   investigation,   making   of   arrest   of   the
accused   or   not   etc.     However,   the   investigation   after
completion would end up only with the report contemplated
in   Section   173   of   the   Code   and   it   is   on   that   report
thereafter, the procedure contemplated by Section 173 of
the Code or rather the power of the Magistrate would come
into   play.     In   other   words,   the   order   directing
investigation   made   by   the   Magistrate   in   the   proceeding
u/s   156(3)   of   the   Code   would   be   final   insofar   as   the
Magistrate is concerned.  The Supreme Court clearly made
a distinction in relation to the power of the Magistrate
u/s 202 (1) of the Code namely to direct an investigation

to be made by a Police Officer or by such other person,
is only for helping the Magistrate to decide whether or
not   there   is   sufficient   ground   for   him   to   proceed
further.   Therefore, such a direction for investigation
contemplated by Section 202(1) of the Code should not be
confused with the direction to investigate u/s 156(3) of
the   Code   and   the   same   is   independent   having   no
relationship with the order of investigation u/s 156(3)
of the Code.  The Full Bench of this Court in the case of
Laxminarayan   Vishwanath   Arya   v.   State   of   Maharashtra   &
others (2007 (5) Mh.L.J., 7) on the basis of the decision
in   the   case   of  M.C.   Abraham   &   others   v.   State   of
Maharashtra   &   others (2003   Bom.C.R.   (Cri),   650   (SC)
stated thus in paragraph no.21 as under:
“21.   The   provisions   of   Section   41   of   the
Criminal   Procedure   Code,   1973,   hereinafter
referred to as "the Code", provides for arrest
by   a   Police   Officer   without   an   order   from   a
Magistrate   and   without   a   warrant.   A   distinct
and   different   power   under   Section   44   of   the
Code   empowers   the   Magistrate   to   arrest   or
order any person to arrest the offender. Under

Section 44 of the Code, that power is vested
in the Court of the Magistrate when an offence
is   committed   in   his   presence.   If   the
Legislature   has   taken   care   of   providing   such
specific   power   under   Section   44  of   the   Code,
then there could be no reason for such a power
not   to   be   specified   under   the   provisions   of
Chapter XII of the Code. In terms of Section
41,   a   police   officer   may   arrest   a   person
without a warrant or order from the Magistrate
for any or all of the conditions specified in
that   provision.   Language   of   this   provision
clearly suggested that the Police Officer can
arrest   a   person   without   an   order   from   the
Magistrate.   Thus,   there   appears   to   be   no
reason   why   on   the   strength   of   Section   156(3)
of   the   Code,   any   restriction   should   be   read
into   the   powers   specifically   granted   by   the
legislature to the Police Officer. Of course,
freedom   of   investigation   is   the   essence   of
these provisions but in order to suppress the
mischief   it   is   sufficiently   indicated   under

different   provisions   of   the   Code   that   the
arresting officer should exercise his power or
discretion   judiciously   and   should   be   free   of
motive.   Some   kind   of   inbuilt   safeguard   is
available   to   the   accused   in   the   cases   where
the   Magistrate   directs   investigation   under
Section 156(3) of the Code by taking recourse
to the provisions of Section 438 of the Code
by   approaching   the   Court   of   Session   or   the
High   Court   for   such  relief.  Thus,   during   the
course of investigation of a criminal case, an
accused   is   not   remediless   and   that   would
further buttress the above view taken by us. “
The Full Bench also stated thus in paragraph nos.12
and 13 as follows:
“12.   Another   aspect   is   the   case   would   be
dependent on the construction of language under
Section   156(3)   of   the   Code.   Though   this
provision   does   empower   the   Magistrate   to   order
an investigation,  the Legislature in its wisdom
had extended no further power to the Magistrate
to   control   or   inter­check   or   stop   or   give
direction   to   the   mode   of   investigation.   The

scheme   of   the   investigation   thus   postulate
investigation   uncontrolled   by   the   Magistrate.
This   was   also   the   view   taken   by   the   Supreme
Court in  S.N. Sharma v. Bipen Kumar Tiwari and
Ors.,  1970   (1)   SCC   653  and  State   of   Bihar   v.
J.A.C. Saldanha and Ors., 1980 (1) SCC 534. 
13.   Consistent is the view taken by the Court
for decades now on this aspect of investigation
of offence. These principles had pervaded effect
on the mode and control of investigation by the
investigating   agency.   These   precepts   have   been
relegated with variance.” 
10] The learned counsel for the parties have cited
before us decision of the Full Bench of Allahabad High
Court in the case of  Father Thomas v. State of U.P. &
another reported at 2011 Cri.L.J.,2278.  We have perused
the said decision and we think that the said decision is
clearly distinguishable since the Full Bench of Allahabad
High Court did not advert to the fact of termination of
the proceedings u/s 156(3) of the Code after passing of
the order by the Magistrate thereunder and thus the said
proceeding ending into final order.
11]   It   is   thus   clear   from   the   above   that   the

investigation   pursuant   to   the   order   u/s   156(3)   of   the
Code   is   not   controlled   by   the   Magistrate   and   that   was
what was held by the Supreme Court in the case of   S.N.
Sharma v. Bipen Kumar Tiwari and State of Bihar v. J.A.C.
Saldanha and Ors., as stated in the Full Bench judgment.
To repeat, after making of order u/s 156(3) of the Code,
the   Magistrate   has   further   nothing   to   do   and   the
proceeding   u/s   156(3)   of   the   Code   gets   terminated.
Nothing remains pending before the Magistrate after such
order   is   made.     Thus,   despite   termination   of   the
proceeding u/s 156(3) of the Code of Criminal Procedure,
1973   and   in   the   light   of   the   principle     'ubi   jus   ibi
remedium', the petitioners / applicants cannot be denied
the statutory remedy of revision.
12] Learned counsel have further cited decision of
the Supreme Court in Dharmeshbhai Vasudevbhai & others v.
State of Gujarat & others  reported at  (2009) 6 SCC 576.
We   quote   paragraph   nos.6   to   8   from   this   decision   as
under:
“6. It is well settled that any person may set
the criminal law in motion subject of course to

the   statutory   interdicts.   When   an   offence   is
committed,  a first information report can be lodged
under Section 154 of the Code of Criminal Procedure
(for   short,   `the   Code').   A   complaint   petition   may
also   be   filed   in   terms   of   Section   200   thereof.
However, in the event for some reasons or the other,
the first information report is not recorded in terms
of   sub­section   (1)   of  Section  156  of   the   Code,   the
magistrate   is   empowered   under   sub­section   (3)   of
Section   156   thereof   to   order   an   investigation   into
the allegations contained in the complaint petition.
Thus, power to direct investigation may arise in two
different situations ­ (1) when a first information
report   is   refused   to   be   lodged;   or   (2)   when   the
statutory power of investigation for some reason or
the other is not conducted. 
7. When an order is passed under sub­section (3)
of Section 156 of the Code, an investigation must be
carried   out.   Only   when   the   investigating   officer
arrives at a finding that the alleged offence has not
been committed by the accused, he may submit a final
form; On the other hand, upon investigation if it is
found that a prima facie case has been made out, a
charge­sheet must be filed. 
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   &   Ors.
[(1970) 1 SCC 653], wherein the law has been stated
as under : 
"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."
13]   We   thus   find   from   the   perusal   of   the   scheme
contained in the aforesaid two Chapters viz. XII and XV
and in the light of above decisions that the order u/s
156(3)   of   the   Code   must   be   held   to   be   not   an
interlocutory   order,   but   an   order   in   the   nature   of   a
final   order.     In   the   case   of  B.S.   Khatri   v.   State   of
Maharashtra & another (2004 (1) Mh.L.J., 747), a Division
Bench of this Court held thus in paragraph nos.13, 17 and
19 and extracted portion from paragraph no.20 as under:
“13.   All that has been done in the present case
is   an   order   under   Section   156(3)   of   the   Code
requiring   investigation   by   a   particular   wing   of
the police of the State of Maharashtra is passed
and   it   is   at   this   stage   the   petitioners   have
moved   this   court   for   exercise   of   its   extra
ordinary   jurisdiction   under   Article   226.
Factually   an   order   under   Section   156(3)   of   the
Code   can   be   revised   by   a   Sessions   Judge   or   by
this court under Section 397 read with 401 of the
Code.   Even   for   that   purpose   therefore   alternate
remedy   is   available   to   the   petitioners.   Apart

from that mere order directing investigation does
not cause any injury of irreparable nature, which
requires quashing of even the investigation. All
that has been ordered is investigation into the
complaint. 
17. The   stage   of   cognizance   would   arise   after
the   investigation   report   is   filed   and   bar
provided   by   Section   195   of   the   Code   regarding
taking   of   cognizance   would   be   applicable
thereafter. We need not therefore consider any of
these decisions as they are on the merits of the
case.
19.   The Supreme Court has observed in the case
of  Rashmi   Kumar   (Smt.)   v.   Mahesh   Kumar   Bhada,
(1997)   2   SCC   397  that   the   writ   jurisdiction
should be sparingly used. We would like to note
verbatim what the Supreme Court has to say: 
"It is well­settled legal position that the
High   Court   should   sparingly   and   cautiously
exercise the power under Section 482 of the
Code to prevent miscarriage of justice. In
State of H.P. v. Prithi Chand two of us (K.
Ramaswamy and S.B. Majmudar, JJ.) composing
the   Bench   and   in  State   of   U.P.   v.   O.P.
Sharma  a   three­Judge   Bench   of   this   Court,
reviewed the entire case­law on the exercise
of power by the High Court under Section 482
of  the  Code to  quash  the  complaint  or  the
charge­sheet or the first information report
and held that the High Court would be loath
and   circumspect   to   exercise   its
extraordinary power under Section 482 of the


Code   or   under   Article   226   of   the
Constitution.   The   Court   would   consider
whether   the   exercise   of   the   power   would
advance   the   cause   of   justice   or   it   would
tantamount   to   abuse   of   the   process   of   the
court. Social stability and order require to
be   regulated   by   proceeding   against   the
offender   as   it   is   an   offence   against   the
society as a whole. This cardinal principle
should   always   be   kept   in   mind   before
embarking upon the exercise of the inherent
power vested in the Court." 
It   will   be   seen   therefore   that   the   writ
jurisdiction   has   to   be   exercised   very
circumspectively. 
20. …....  ….. ….. …..
It will be seen that what is impugned before us
is the order passed under Section 156(3) of the
Code   which   directs   investigation   into   the
complaint   by   a   particular   wing   of   the   police.
What   is   going   to   be   the   outcome   of   that
investigation   is   not   known.   Everything   that   can
happen   thereafter   can   be   scrutinized   and
rescrutinized   by   judicial   authorities   mentioned
in the Code and there is therefore no question of
miscarriage   of   justice   being   caused   by   not
quashing of the complaint and order.” 
   Finally we quote paragraph no.31 as under :
“31.   We   have   also   noted   above   that   several
efficacious   alternate   statutory   remedies   under

the Criminal Procedure Code are available to the
petitioners to challenge the order under Section
156(3).   Without   availing   them   the   petitioners
have rushed before this court, claiming exercise
of its extra ordinary jurisdiction under Article
226. In our opinion therefore, there is no need
to exercise this jurisdiction to quash merely the
complaint   and   order   under   Section   156,   Criminal
Procedure   Code   requiring   investigation   into
complaint   by   the   police.   The   petitions   are
therefore liable to be dismissed. “
14]   Insofar as the question framed by us is concerned,
we find that there is a passing reference in paragraph
no.31  made  by  the  Division  Bench  about  availability of
several efficacious alternative statutory remedies under
the Criminal  Procedure  Code to  challenge  the  order  u/s
156(3).  We think though it is obiter dicta, nevertheless
the same is binding on us as we respectively agree with
the said view, for the above reasons that the order u/s
156(3) of the Code not being an interlocutory order, but
being   a   final   order   in   a  proceeding   u/s   156(3)   of   the
Code   would   certainly   be   revisable   under   the   revisional
powers   of   the   Sessions   Court   or   the   High   Court.     The
Division Bench in the case of   B.S. Khatri v. State of

Maharashtra & another (supra), however, clearly held that
the exercise of extraordinary jurisdiction under Article
226   of   the   Constitution   should   not   be   made   for
considering the challenge to order u/s 156(3) of the Code
with   which   again   we   respectfully   agree.     We,   however,
state that the bar to exercise extraordinary jurisdiction
under Article 226 of the Constitution is the one of self imposed
  rule.     We,   however,   hold   that   the   order   u/s
156(3)   of   the   Code   not   being   an   interlocutory   order,
would   obviously   be   revisable.     We   thus   hold   that   the
order u/s 156(3) of the Code of Criminal Procedure, 1973,
is   not   an   interlocutory   order,   but   is   a   final   order
terminating   the   proceeding   u/s   156(3)   of   the   Code   and
that   the   revision   u/s   397   or   Section   401   of   the   Code
would lie.  
15] The learned counsel for the parties have cited
several decisions before this Court, but then we do not
think that it is necessary to refer to them in the light
of the discussion made by us above.

16] The learned counsel for the appearing parties in
all these matters submitted that the power of this Court
u/s 482 of the Code ought to be exercised by this Court
since the proceedings impugned amount to abuse of process
of the Criminal Court.   It is in this context, we have
heard the learned counsel for the parties and also seen
the pleadings in these applications / petitions.  We have
carefully   perused   the   pleadings   and   heard   the   learned
counsel with respect to the documents on record and we
find   that   the   jurisdiction   u/s   482   of   the   Code   is   not
required to be exercised on the facts of these cases.  It
is a well settled legal position, as pointed out by us
earlier,   that   the   power   u/s   482   of   the   Code   is   to   be
exercised sparingly.  The facts and the documents in the
instant   case   in   all   these   cases   show   several   disputed
questions and the facets which require due investigation
in the light of the documents and the other material on
record.   We have come to the conclusion that these are
not the cases fit for exercising the inherent power u/s
482   of   the   Code   and,   therefore,   we   think   that   the
applicants   /   petitioners   can   very   well   address   the
revisional Court on facts as well as on the questions of

law   with   reference   to   documents   etc.   even   for   seeking
intervention   of   the   revisional   Court   for   quashing   the
impugned orders.  That being so, we hold that in none of
these cases, the inherent power of this Court deserves to
be exercised and, therefore, keeping all the points open
and   in   view   of   the   fact   that   we   have   held   that   the
revision   would   lie,   we   decline   the   request   of   the
applicants / petitioners to exercise our power either u/s
482 of the Code or under Article 226 of the Constitution
of India.  In the result, we make the following order.
    ORDER
a]   Criminal   Writ   Petitions   as   well   as   the   Criminal
Applications   are   all   disposed   of   holding   that   the
applicants   /   petitioners   in   these   applications   /   writ
petitions   are   entitled   to   file   revisions   before   the
revisional   Court   to   set   up   challenge   in   the   revisions
before the revisional Court.   All the points raised in
these applicatioins / writ petitions on facts as well as
in law are kept open.  

b] The   revisional   Court   shall   consider   the   issue   of
limitation   in   the   light   of   Section   14   of   the   Indian
Limitation   Act   sympathetically   in   the   matter   of
condonation of delay in filing the revisions.
c] The applications / writ petitions in which interim
orders   have   been   made   by   this   Court   shall   continue   to
operate for another four weeks from today.  
d] There   shall   be   no   order   as   to   costs   in   these
matters.
          (INDIRA K. JAIN, J.)     (A.B. CHAUDHARI, J.)

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