Remedy Against Order Passed Under Section 156 (3) Of Cr.P.C.

Recently, the Hon’ble Supreme Court of India, dealt with an appeal titled M/s SAS Infratech Pvt. Ltd vs. State of Telangana & Anr. bearing Criminal Appeal No. 2574/2024[1] filed by the complainant against an order of Hon’ble High Court for the State of Telangana at Hyderabad which was decided vide judgment dated 14^th May 2024. The High Court in the said case allowed a criminal petition under Section 482 of Cr. P.C. and set aside the order passed by Additional Metropolitan Magistrate under Section 156(3) Cr. P.C to investigate. The High Court while allowing the petition of the accused had held that the impugned order is made without any proper reasons and therefore, it is liable to be set aside. The High Court further held that if any FIR has been registered consequential to the impugned order, that FIR shall also stand set aside and the matter was remanded back to the trial Court to follow the procedure as contemplated under the Code of Criminal Procedure, 1973 and to pass appropriate orders.

The Apex Court while citing the case of “Devarapalli Lakshminarayana Reddy And Others Versus V. Narayana Reddy And Others” (1976) 3 SCC 252, distinguished Sections 156 (3)

and 200 of Cr. P.C.  In the said judgment, it was held that if, instead of proceeding under Chapter XV of Cr.P.C. (Complaints to Magistrates), the Magistrate has, in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence.

In view of the above judgment, the Apex Court held that when the Magistrate in exercise of his judicial discretion directs investigation under Section 156(3) of Cr. P.C., he cannot be said to have taken cognizance of any offence. It is only when the Magistrate after applying his mind prefers to follow the procedure under Chapter XV of Cr. P.C. by resorting to Section 200, he can be said to have taken cognizance of the offence.

The Apex Court, in the said case, finally held that the trial court had perused the complaint and the documents in support thereof, and also the submissions made by the learned counsel for the appellant/ complainant and after having been prima facie satisfied, it had exercised its judicial discretion directing investigation under Section 156(3) of Cr. P.C. Such order has been held by the Apex Court as being just, legal and proper, and further held that the High Court should not have interfered with the same, more particularly while exercising limited powers under Section 482 of Cr. P.C.  Therefore, the impugned order passed by the High Court was set aside and the order of the trial court was restored.

The question is, in case the order of the trial court was not held by the Apex Court as being just, legal and proper, or if the Apex Court was not satisfied with the order of trial court,  would petition under Section 482 of Cr. P.C. be maintainable ?

It is a settled law that the inherent powers under Section 482 of Cr. P.C. can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided by the statute. In view of this, it would not be out of place to discuss the case of Ravinder Lal Airi vs. S. Shalu Construction Pvt. Ltd. & Ors. W.P. (Crl.) 209/2023[2] dated 24.01.2023 passed by the Hon’ble High Court of Delhi.

The Delhi High Court in the above-mentioned case was dealing with a writ petition seeking setting aside of the impugned judgment passed by Hon’ble Sessions Court in a Criminal Revision Petition. In the said case, Hon’ble ACMM, while dealing with an application under Section 156(3) of Cr. P.C. disregarded the action taken report (ATR) and directed the registration of an FIR. The said order was challenged by the accused in a revision petition before Additional Sessions Judge who dealt primarily with the following:

1. Maintainability of revision petition
2. once the ATR opined that no cognizable offence is made out and the matter is civil in nature, for the Hon’ble ACMM to disagree with the opinion of the inquiry officer and order registration of FIR would require reasons or not?

The Sessions Court was of the view that the impugned order was devoid of reasons and hence set aside the impugned order and remanded the matter to ACMM to hear afresh and take a reasoned decision.

The counsel for the complainant/ petitioner before the High Court stated that the order directing registration of FIR is an interlocutory order and relied upon the judgment of Gujarat High Court in “Parmar Rameshchandra Ganpatray & Ors. vs. State of Gujarat & Ors.” in Spl. Criminal Appl. No. 5789/2016. The relevant paras 45 & 50 of the said judgment are reproduced below:

“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.

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.”

In addition to the above judgment, the counsel for the complainant also relied on the judgment of Allahabad High Court viz., “Father Thomas vs. State of U.P. & Ors.” in CRL.REV. No. 1581/2001, 1640/2001, 1656/2001, 1658/2001, 1727/2001, 1731/2001. In the said judgment it was held that 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.

The Delhi High Court disagreed with the above two judgments of Gujarat High Court and Allahabad High Court and cited the case of “Nishu Wadhwa vs. Siddharth Wadhwa & Anr.” in W.P.(CRL) 1253/2016 wherein it was observed that

“…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.”

The Delhi High Court relying on the said judgment observed that the registration of FIR 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 not an interlocutory order and the revision petition against the same would be maintainable as the accused has a valuable right to be heard. At this stage, as far as the rights of the accused are concerned, it is also not out of place to mention the order passed in the case titled Santhakumari & Ors. vs. State Of Tamil Nadu & Anr bearing SLP (Crl.) No. 4230 of 2023[3] by the Hon’ble Supreme Court of India on 12^th May 2023. In the said case, while exercising revisional power, the proposed accused/ appellant before the Supreme Court were not served notice of the revision proceedings and the revision was allowed by the High Court with a direction to register First Information Report against the accused. The accused/ appellant therein cited the case of Manharbhai Muljibhai Kapadia & Another v. Shaileshbhai Mohanbhai Patel & Others (2012) 10 SCC 517, wherein it was held that  the accused cannot be deprived of hearing on the face of expression contained in Section 401(2) of Cr. P.C. which reads as “No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.”. Relying on the said judgment the matter was remitted back to the High Court to decide the revision afresh in accordance with law.

Coming back to the decision of Delhi High Court, the counsel for the complainant stated that only brief reasons are required for registration of an FIR which was done. However, while considering the ATR and after considering the case of “Harpal Singh Arora and Ors. vs. State and Anr.” 2008 (103) DRJ 282 and “Arvindbhai Ravjibhai Patel vs. Dhirubhai Sambhubhai‟ 1998(1) Crimes 351, held that ATR has not been considered by the Hon’ble MM. It was held that the order of the trial court is not showing application of mind as to why and how the ATR has been considered and the reasons as to why the Hon’ble MM has not agreed with the opinion expressed by the IO that no cognizable offence has been made out. It was held that this aspect has been correctly analysed by the Hon’ble Sessions Court in its revisional jurisdiction. In view of this, the petition was dismissed.

Key takeaways:

1. A revision petition is maintainable against an order under Section 156(3) of Cr. P.C.
2. Since remedy before the revision court is available against the order passed under Section 156(3) of Cr. P.C., the inherent powers under Section 482 of Cr. P.C. cannot be exercised.
3. Registration of FIR affects the fundamental right and freedom of the accused person and 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 not an interlocutory order.
4. While considering the application under Section 156(3) of Cr. P.C., the order of the trial court ought to show application of mind that the ATR has been considered and the reasons as to why the Hon’ble MM does not agree with the opinion expressed by the IO that no cognizable offence has been made out.

References :

[1] https://webapi.sci.gov.in/supremecourt/2023/52059/52059_2023_14_29_53242_Order_14-May-2024.pdf

[2] https://dhccaseinfo.nic.in/jsearch/judgement.php?path=dhc/JSM/judgement/30-01-2023/&name=JSM24012023CRLW2092023_111651.pdf

[3] https://webapi.sci.gov.in/supremecourt/2023/3911/3911_2023_14_35_44458_Order_12-May-2023.pdf