HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved AFR Court No. - 11 Case :- CRIMINAL REVISION No. - 3464 of 2006 Revisionist :- Raja Radha Mohan Srivastava @ Lalla Opposite Party :- State Of U.P. & Another Counsel for Revisionist :- S.B. Singh,Rajesh Pachauri Counsel for Opposite Party :- Govt. Advocate Hon'ble Amar Singh Chauhan,J. This revision has been listed in the daily cause list under the heading "group of cases likely to be infructuous (without objection)." This criminal revision has been preferred by revisionist against the judgement/order dated 17.6.2006 passed by Additional Sessions Judge/F.T.C. Ist Orai at Jalaun in Criminal Revision No. 128 of 2006 (Smt. Ram Dulari vs. State of U.P. and others) whereby the order dated 21.3.2006 passed by learned Magistrate rejecting the application under section 156(3) Cr.P.C. has been set aside and the case has been remanded with a direction to decide the application under Section 156(3) Cr.P.C. afresh according to law. As per factual matrix of the case, an application under Section 156(3) Cr.P.C. was moved by the respondent no. 2, Smt. Ram Dulari alleging that her relative Lala Ram came to her house and told that one Advocate Mr. Lalla Munna @ Raja Radha Mohan Srivastava is preparing pension papers. On this pretext, she along with Lala Ram and Dinesh Chandra Agrawal came to the Tehsil where after obtaining her photo, her right thumb impression got affixed on paper. After some time she came to know that a Will was prepared by imposting her as Smt. Phulle Rani @ Prema Devi.
The aforesaid application was rejected by the Judicial Magistrate, Kalpi, Orai holding categorically that the complainant is not an aggrieved person rather she is an accused in the alleged offence.
Aggrieved from the said order, the complainant filed a criminal revision which was allowed and while setting aside the order of Magistrate, the latter was directed to decide this application under section 156(3) Cr.P.C. afresh. Aggrieved by the order of Additional Sessions Judge, Oriai, this Court was moved by the petitioner.
I have heard learned counsel for the revisionist, learned AGA for the State and perused the record.
In this criminal revision, the legality, propriety or correctness of the impugned order be gone into.
Learned counsel for the revisionist submitted inter alia that the revisional court has erred. In fact as the Magistrate has categorically recorded its finding that the complainant is not an aggrieved person as the property alleged to have been forged belonged to one Rajeev Tiwari who has not come before the Court. While remanding the case to the Magistrate the revisional court has left no option before the Magistrate except to allow the application under Section 156(3) Cr.P.C. since the matter is only of civil nature and the property belongs to one Rajeev Tiwari. The stranger cannot claim herself to be custodian interest of Rajeev Tiwari.
In this case, an application was moved by the complainant before the Magistrate under Section 156(3) Cr.P.C. The Magistrate after considering the contents of the complaint came to the conclusion that there was no ground for directing the police to register and investigate the case. Upon which the application under Section 156(3) Cr.P.C. was rejected. Aggrieved from the order, the complainant preferred a criminal revision before the Sessions Judge which was allowed and the matter was directed to decide the application under Section 156(3) Cr.P.C. afresh. Aggrieved by the order of the Additional Sessions Judge, the revisionist approached this court. The revisionist is the prospective accused but neither any process issued against him nor cognizance has been taken. The impugned order is of interim or temporary nature which does not decide or touch upon important right or liabilities of the parties. Interlocutory orders are purely procedural orders which do not affect rights and liabilities of the parties and only steps towards the process of final adjudication. Impugned order, by which only direction was given to decide the application under section 156(3) Cr.P.C. afresh as per law, is of purely interim nature against which revision is not maintainable. At this stage accused does not come into picture at all nor can he be heard. He has no locus to participate in the proceeding. It must be remembered that it is precognizance stage.
In this respect, the Apex Court has held in the case of Union of India v. W.N. Chadha 1993 SCC (Cr) 1171 as follows:
"The rule of audi alteram partem is not attracted unless the impugned order is shown to have deprived a person of his liberty or his property. The rule of audi alteram partem is a rule of justice and its application is excluded where the rule will itself lead to injustice. There is exclusion of the application of audi alteram partem rule to cases where nothing unfair can be inferred by not affording an opportunity to present and meet a case. This rule cannot be applied to defeat the ends of justice or to make the law 'lifeless, absurd, stultifying and self-defeating or plainly contrary to the common sense of the situation' and this rule may be jettisoned in very exceptional circumstances where compulsive necessity so demands. There are certain exceptional circumstances and situations where under the application of the rule of audi alteram partem is not attracted."
It is to be noted that an order under Section 156(3) Cr.P.C. is a pre cognizance order. Magistrate has not to apply his mind against anybody. He has to simply direct the police to register the FIR and investigate the offence. Session's Judge was dealing with a pre FIR stage and not a post FIR stage and this makes a uncoalescenced difference. The nature of the order passed by the Magistrate under section 156(3) Cr.P.C. is only a "Peremptory reminder or intimation to the police to exercise their plenary power of investigation under Section 156(1) Cr.P.C." as has been held by the Apex Court in the case of Devarappalli Lakshaminarayana Reddy and Ors. v. V. Narayana Reddy and Ors. 1976 ACC 230.
The application under section 156(3) Cr.P.C. disclosed the commission of cognizable offence since the Will was said to be prepared by imposting complainant as Smt. Phulle Rani @ Prema Devi on the pretext of preparing pension paper of complainant.
The learned Magistrate while rejecting the application under section 156(3) Cr.P.C. holding that complainant is not aggrieved person rather she is an accused in the alleged offence. The reasoning of the Magistrate is totally unwarranted and without jurisdiction because under section 156(3) Cr.P.C. the Magistrate is only required to examine whether from the case of informant, a cognizable offence is made out. If the complainant is involved in alleged offence, she would come within the grip of investigation.
In the case of Lalita Kumari vs. Government of Uttar Pradesh and others 2014 2 SCC, the Apex Court held that the registration of FIR is mandatory under section 154, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. This is the general rule and must be strictly complied with.
The Full Bench of this Court in the case of Jagannath Verma & others vs. State of U.P. and another in Criminal Misc. Case No 3778 of 2012, decided on 23.9.2014 has conclusively observed:
(i) Before the Full Bench of this Court in Father Thomas, the controversy was whether a direction to the police to register a First Information Report in regard to a case involving a cognizable offence and for investigation is open to revision at the instance of a person suspected of having committed a crime against whom neither cognizance has been taken nor any process issued. Such an order was held to be interlocutory in nature and, therefore, to attract the bar under sub-section (2) of Section 397. The decision in father Thomas does not decide the issue as to whether the rejected of an application under Section 156(3) would be amenable to a revision under section 397 by the complainant or the informant whose application has been rejected;
(ii) 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 amendable to the remedy of a criminal revision under Section 397; and
(iii) In proceedings in revision under Section 397, the prospective accused or, as the case may be, the person who is suspected of having committed the crime is entitled to an opportunity of being heard before a decision is taken in the criminal revision.
After considering the above discussion, legality, propriety or correctness of the impugned order and submission made thereon, I am of the view that impugned order is passed at precognizance stage which does not determine the rights or obligations of the parties. Therefore, it is not revisable and liable to be dismissed. Hence this criminal revision is hereby dismissed. There is no order for cost.
Date: 10.7.2015 Puspendra (Amar Singh Chauhan,J.)