Madhya Pradesh High Court
Dr. Pramod Sharma vs The State Of Madhya Pradesh on 1 December, 2023
Author: Vishal Dhagat
Bench: Vishal Dhagat
1
IN THE HIGH COURT OF MADHYA
PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL DHAGAT
ON THE 1 st OF DECEMBER, 2023
MISC. CRIMINAL CASE No. 5275 of 2023
BETWEEN:-
DR. PRAMOD SHARMA S/O LATE SHRI SATISH
SHARMA, AGED ABOUT 48 YEARS, H.NO. A-390,
NEW MINAL RESIDENCY, J.K. ROAD, (MADHYA
PRADESH)
.....APPLICANT
(BY SHRI KUNAL DUBEY - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROGH
P.S. M.P. NAGAR BHOPAL (MADHYA
PRADESH)
2. ABHISHEK NIGAM S/O SHRI SURESH
KUMAR NIGAM, AGED ABOUT 46 YEARS, R/O
H.NO 37, J.K. PARK COLONY, SARVDHARAM
C SECTOR, KOLAR ROAD, BHOPAL
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI AKSHAY NAMDEO - GOVERNMENT ADVOCATE)
T h is application coming on for admission this day, t h e court
passed the following:
ORDER
Petitioner has filed this petition under Section 482 of the Code of
Criminal Procedure challenging order dated 23.01.2023 passed by
Revisional Court/ 12th Additional Sessions Judge, Bhopal (MP) in CRR
No.58/2023.
2. Learned counsel appearing for the petitioner submitted that
revisional Court has committed an error in dismissing the revision on
ground that revision petition is not maintainable against an interlocutory
order. Direction was given by Magistrate to register an FIR under Section
156(3) of the Cr.P.C. and submit its report before the Court is not an
interlocutory order and revision petition is maintainable against the same.
Revisional Court has committed an error in relying on judgment passed by
Full Bench of Allahabad High Court when Apex Court in case of Kishan
Lal Vs. Dharmendra Bafna & Another reported in 2009 (9) Scale 768
has held as under:-
"16. Now what is required to be seen is whether trial
court order directing registration of FRI while
exercising its power under Section 156(3) Cr.P.C. is an
interlocutory order or an intermediate order. No doubt
in Farther Thomas (supra), an order under Section 156
(3) Cr.P.C. has been held to be an interlocutory order
being non-revisable, but Apex Court in Kishan Lal V.
Dharmendra Bafna & Anr. 2009 (9) Scale 768 in respect
of such an order, has ruled as under:-
"It is correct that the revisional court should not
interfere with the discretionary jurisdiction
exercised by the learned Magistrate unless a
jurisdictional error or an error of law is noticed."
In view of aforesaid, counsel appearing for petitioner prays for
setting aside the impugned order.
3. Learned Government Advocate appearing for the State opposed
the petition and submitted that no interference is called for in the impugned
order. Direction to register an FIR issued by Magistrate is an order which
is passed without application of mind by the Court and no reasoning is
also given. Registration of FIR does not affect the rights of a person.
None of the rights are adjudicated by police in registering FIR. Since,
registration of FIR does not touches upon the right of a person, therefore,
same is an interlocutory order. No error has been committed by the Court
below.
4. Heard the counsel for the parties.
5. In case of Kishan Lal (supra), Apex Court held that revisional
Court should not interfere with discretionary jurisdiction of Magistrate
unless there is jurisdictional error of law. As a logical corollary of said
observation, it is clear that criminal revision against an order passed under
Section 156 (3) Cr.P.C. will be maintainable. However, no reason has been
given by Supreme Court in the order making said observation, therefore,
it is only obiter dicta and not ratio decidendi of the decision and same
will not be binding on the Courts below. Question whether criminal
revision is maintainable against order passed under Section 156(3) Cr.P.C.
is still open and Apex Court has still to give a finding on aforesaid subject.
This Court as well as Delhi High Court and High Court of Bombay has
held that order passed by Magistrate under Section 156(3) Cr.P.C. is not
interlocutory order and is revisable in nature.
6. I am in an agreement with the judgment passed by aforesaid High
Courts and by our own High Court. An order passed by Judicial
Magistrate and direction given by Judicial Magistrate under Section 156(3)
Cr.P.C. to register an FIR against a person and to produce report before
it, will seriously affect a person. Once FIR is registered a person becomes
an accused in the case and his rights and freedom may also be affected by
registration of a case against him. He may also be arrested by police, if
offence is cognizable and non-bailable in nature. In these circumstances, it
cannot be said that an order which has been passed by Magistrate under
Section 156(3) Cr.P.C. is only an interlocutory order and does not
touches upon the right of a person. In these circumstances, it is held that
order passed by Magistrate under Section 156 (3) Cr.P.C. is not an
interlocutory order but an order of an intermediate nature against which
criminal revision is maintainable.
7. In view of same, impugned order dated 23.01.2023 is quashed.
Matter is remanded back to the trial Court for consideration on its merits.
8. Petition is allowed.
(VISHAL DHAGAT)
JUDGE
$A
