- (1.) VINOD Prasad, J. The impugned order dated 13-10-2006 passed by Sessions Judge, Mahoba in S. T. No. 109 of 2006 State v. Kallu and Ors. , under Sections 147, 148, 302, 307 I. P. C. , P. S. Kotwali, District Mahoba is an interlocutory order and no revision against such an order is maintainable. Hence, this revision is dismissed.
(2.) LEARNED Counsel for the revisionist relied on a judgment of this Court Jokhan Patel v. State of U. P. , reported in 2001 (2) JIC 459 (SC) : 2001 (43) ACC 481. I have gone through the aforesaid judgment. In the aforesaid judgment this Court (Hon'ble J. C. Gupta) did not at all addressed himself to Section 397 (2) Cr. P. C. which was sine quo non for determining as to whether a revision is maintainable against such an order or not. It has been held by the Apex Court in 2006 that if an order has been passed against statutory bar, it is not precedent in the eyes of law. In my view, I am fortified by the judgment rendered by the Apex Court 1977 SCC (Cr.) 585, Amar Nath and Ors. v. State of Haryana and Anr. , where the Apex Court has held thus: "the Magistrate on receiving the order of the Sessions Judge summoned the appellants straightway which meant that the appellants were to be put on trial. So long as the Judicial Magistrate had not passed this order, no proceedings were Staffed against the appellants, nor were any such proceedings pending against them. It was only with the passing of the impugned order that the proceedings started and the question of the appellants being put up for trial arose for the first time. " (Emphasis supplied and mine)
(3.) THUS till the stage of summoning there is no proceeding so far as the accused is concerned. THUS it is clear that so far accused is concerned he is not a party to any 'proceeding' till the stage of summoning and he cannot be heard. Section 397 Cr. P. C. deals with 'proceedings'. THUS applying the law laid down by the apex Court, so far as accused is concerned, no 'proceeding' has taken place at the stage of Section 156 (3) of the Code. More over order under Section 156 (3) of the Code is in the nature of an administrative order because empowers the Magistrate only to issue a direction to the police to exercise their plenary power of investigation and nothing more, The power which has been conferred on the Superintendent of police under Section 154 (3) of the Code has been conferred on the Magistrate under Section 156 (3) Cr. P. C. to check the arbitrary exercise of power by the police echelons and to get the law observed by it and not to flout it. So far as the accused is concerned he has got no right to object to the registration of FIR against him. He has got no right under any law to appear and say that the Magistrate does not possess the power to order for registration of FIR against him. There is no provision in the Code which confers such a right to the accused. Conferring such a right through judicial pronouncements will amount to legislation which power the Courts do not possess. The Code of Criminal Procedure (Code) does not confer pre FIR registration hearing on a prospective accused. It has been held by the apex Court in the case of Nagawwa v. Veeranna Shivlingappa Konjalgi, AIR 1976 SC 1947, as follows: "at any rate, at the stage of Section 202 or Section 204 of the Code of Criminal Procedure as the accused had no locus standi the Magistrate had absolutely no jurisdiction to go into any materials or evidence which may be produced by the accused who could be present only to watch the proceedings and not to participate in them. Indeed if the documents or the evidence produced by the accused is allowed to be taken by the Magistrate then an inquiry under Section 202 would have to be converted into a full-dress trial defeating the very object for which this section has been engrafted. The High Court in quashing the order of the Magistrate completely failed to consider the limited scope of an inquiry under Section 202. Having gone through the order of the Magistrate we do not and any error of law committed by him. The Magistrate has exercised his discretion and has given cogent reasons for his conclusion. Whether the reasons were good or bad, sufficient or insufficient, is not a matter which could have been examined by the High Court in revision. We are constrained to observe that the High Court went out of its way to write a laboured judgment highlighting certain aspects of the case of the accused as appearing from the documents filed by them which they were not entitled to file and which were not entitled in law to be considered. (Emphasis mine) It has further been held by the apex Court in the case of V. Panchal v. D. D. Ghandigaonkar, AIR 1961 ISCR 1, as follows: "the section does not say that a regular trial of adjudging the truth or otherwise of the person complained against should take place at that stage for such a person can be called upon to answer the allegation made against him only when a process has been issued. ";