Virendra Kumar Saini v. State of Uttarakhand through Secretary Home, Dehradun

High Court) in which similar question was dealt, and answer given by the Full Bench of Allahabad High Court is that no revision is maintainable against the order passed under section 156 (3) Cr.P.C., on the ground that the accused has no right to be heard at the stage of proceedings under section 156 (3) Cr.P.C.. It is also held in the aforesaid case by the Allahabad High Court that power of Superintendent of Police to direct to his subordinate officer under section 156 (1) Cr.P.C., to register the crime is similar to that of the power exercised by the Magistrate under section 156 (3) Cr.P.C.. Allahabad High Court has further observed that accused has no right of participation during the course of the investigation till investigation culminates in filing the final report or charge sheet under section 173 of the Code.

#7. On the other hand, on behalf of respondent no. 2 learned counsel referred to the case of Raghu Raj Singh Rousha vs. Shivam Sundaram & another (2009) 1 SCC (Cri) 801 and Amarnath Vs. State of Haryana AIR 1977, S.C.

#2185. In the case of Raghu Raj Singh Rousha (supra) it is held by the Apex Court that though 5 the accused has no right to participate, unless the process is issued, but in the case before the Supreme Court, the Magistrate after rejecting the application under section 156 (3) Cr.P.C., had proceeded, treating the application as criminal complaint under section 190(1) of Cr.P.C., and cognizance was taken, as such the revision against the said order was maintainable before the High Court. In case of Amarnath (supra) the Apex Court had held that the issuance of summoning order in the criminal complaint case under section 204 Cr.P.C., is final order, and as such revision is maintainable.

#8. Unlike the case of Raghu Raj Singh Rousha (supra) and that of Amarnath (supra) the Magistrate in the present case did not treat the application under section 156 (3) Cr.P.C., as a criminal complaint case, nor appears to have taken the cognizance of the offence. In the case of Raghu Raj Singh Rousha vs. Shivam Sundaram & another (2009) 1 SCC (Cri) 801, after rejecting the application under section 156 (3) Cr.P.C., the Magistrate had proceeded under section 200 and 202 Cr.P.C., treating the application as criminal 6 complaint . Similarly in the case of Amarnath Vs. State of Haryana AIR 1977, S.C. 2185, police submitted final report, and on the protest petition, the Magistrate did not find any error with the final report, and treated the protest petition as criminal complaint and issued summons after receiving directions of the revisional court to take fresh decision. Had the Magistrate taken the view under section 203 Cr.P.C., on the criminal complaint, the proceedings could have finally terminated as such against the order passed under section 204 Cr.P.C., it was held that the revision is maintainable. None of these cases say that against the mere order of directing the police to register the case (under section 156 (3) Cr.P.C.), revision is maintainable.

#9. Having considered submissions of learned counsel for the parties, and after going through the various case laws, this Court is of the view that the only remedy for the accused against the order directing to register the case and investigate, was to challenge the First Information Report registered by the Police by moving a writ petition under Article 226 of Constitution of India. [Reference Amrawati vs. State of U.P. 2004 (50) 7 ACC 742 (Seven Judges Judgment)].

#10. For the reasons as discussed above, since the revision against the order passed by the Magistrate was not maintainable, the impugned order dated 31.05.2011, passed by the Sessions Judge, Hardwar, in Criminal Revision no. 89 of 2011, is liable to be quashed. Accordingly, the same is quashed Parul AFR (Prafulla C. Pant, J.) 30.04.2012