Hon'ble Amar Saran, J. - (1.) -We have heard Sri. G.S. Chaturvedi Senior Advocate assisted by Sri Samit Gopal, Sri D.S. Mishra and Sri Dileep Gupta Advocates for the private parties and Sri Patanjali Mishra, A.G.A., Sri Neeraj Verma, A.G.A., and Sri D.R. Choudhary , Government Advocate for the State of U.P. Written arguments and case law were filed by the State. However inspite of time being allowed, no written arguments or case law were filed by the private counsel, except Sri G.S. Chaturvedi, who had filed some case law in 2008 in the leading petition, Crl. Revn. No. 1640 of 2000 on behalf of Father Thomas, and has also supplied us with some additional photocopies of relevant case law.
(2.) THIS Full Bench was constituted after an order dated 28.9.01 was passed by the Single Judge (Hon. J.C. Gupta, J), who was examining the power of the Court in a Criminal Revision to question an order of the Magistrate issuing a direction under Section 156(3) of the Code of Criminal Procedure (hereafter 'Cr.P.C or 'the Code') to the police to register an FIR and to investigate the same. The Single Judge was of the view that as the accused has no locus standi before an order is passed summoning the accused, and also as the order directing investigation is purely interlocutory in nature, in view of the statutory bar contained in Section 397(2) of the Code, the said order was not revisable. However, as it had been held in Ajay Malviya v. State of U.P.and others, 2000(41) A C C 435, that as an order under Section 156(3) Cr.P.C. is a judicial order, hence any FIR registered on its basis could not be challenged by means of a writ petition. Dissenting from this view the Single Judge without disputing the position that an order under Section 156(3) of the Code was a judicial order, observed that the said order was an interlocutory order, which could not be challenged by a prospective accused who had no locus standi at the stage of investigation, hence a Criminal Revision was not maintainable for challenging the said order. In this background the Single Judge raised doubts about the correctness of the decision of the division bench in Ajay Malviya which based its conclusions on the position that as an order under Section 156(3) was a judicial order, hence it was ipso facto revisable, and therefore no FIR pursuant to such an order, could be challenged by means of a criminal writ. The learned single judge thereupon vacated all the stay orders granted in the connected Criminal Revisions, which are before us, and formulated the following three questions for consideration by a larger bench, which are now being examined by the present Full Bench.
(3.) A. Whether the order of the Magistrate made in exercise of powers under Section 156(3) Cr.P.C. directing the police to register and investigate is open to revision at the instance of a person against whom neither cognizance has been taken nor any process issued? B. Whether an order made under Section 156(3) Cr.P.C. is an interlocutory order and remedy of revision against such order is barred under sub-section (2) of Section 397 of the Code of Criminal Procedure, 1973? C. Whether the view expressed by a Division Bench of this Court in the case of Ajay Malviya v. State of U.P. and others, 2000(41) A C C 435, that as an order made under Section 156(3) of the Code of Criminal Procedure is amenable to revision, no writ petition for quashing an F.I.R registered on the basis of the order will be maintainable, is correct? Opinion of the bench on the three issues : A. Locus standi of a prospective accused against whom neither cognizance has been taken nor process issued, to challenge an order under Section 156(3) Cr.P.C. in a Criminal Revision. Before examining any of the questions posed in this case, it would be necessary to reproduce the words of Section 156 which falls in Chapter XII of the Code.;