Saturday, 30 April 2016

Whether Revision is maintainable against order passed under S 156(3) CRPC?

 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 selfimposed
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.
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; 2016CRLJ (NOC)102 Bom,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:

15

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 officerincharge
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 subsection
(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 selfimposed
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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