- (1.) VINOD Prasad, J. This revision has been filed by Chandan who is aggrieved by the order dated 31-8-2006 passed by Civil Judge (Junior Division) Judicial Magistrate, Chakia, Chandauli in Miscellaneous Case No. Nil of 2006, Manoj Kumar v. Chandan and Anr. , under Section 156 (3) Cr. P. C. , P. S. Chakia, District Chandauli. By the impugned order the Magistrate concerned has ordered for registration of the F. I. R. and investigation in pursuance thereof in the crime by the police, on the application under Section 156 (3) Cr. P. C filed by Manoj Kumar (respondent No. 2 ).
(2.) THE facts giving rise to this revision are that on 5-9-2006 an application under Section 156 (3) Cr. P. C. was filed by Manoj Kumar with the allegations that his wife Smt. Usha Devi was enticed away by Chandan (present revisionist) and after exerting undue influence on her got himself photographed with her in objectionable poses. His wife Smt. Usha Devi because of shame could not inform the said fact to the family members. On 12-8-2006 Chandan, (revisionist) sent those photographs to the applicant Manoj Kumar (respondent No. 2) and started blackmailing him for Rs. 10000/-on the pretext that in case the said amount is not paid he will defame the couple by publishing the said photographs in the village. When the applicant Manoj Kumar objected to the said conduct, revisionist Chandan and his maternal uncle Ram Ji, who is said to be a police constable, threatened him with life and also abused him filthily. Manoj Kumar wanted to lodge the report of extortion and threatening but his report was not taken down by the Officer-in-charge of the police station. His application to the Superintendent of Police, Chandauli, sent through registered post on 17-8-2006 did not yield any result, consequently, on 19-8- 2006, Manoj Kumar, respondent No. 2 filed an application under Section 156 (3) Cr. P. C. before the concerned Magistrate. Magistrate initially called for a report from police and fixed 21-8-2006. Subsequently, he again fixed 22-8-2006 and 25-8-2006. Ultimately on 31-8-2006 the Magistrate ordered that the application filed by the applicant discloses commission of a cognizable offence and therefore, it should be investigated as no FIR. was already registered at the police station. With the aforesaid observation, he directed the police to register the FIR. and investigate the case and sent a copy of the FIR. to him within seven days which order is under challenge in this revision. I have heard Sri C. K. Parikh, learned Counsel for the revisionist in support of this revision and the learned AGA in opposition. At the very out set the question of maintainability of this revision at the instance of the revisionist, against whom an order under Section 156 (3) Cr. P. C. was passed, came up for consideration, as the learned AGA raised the preliminary objection that this revision by the revisionist who is a proposed accused is not maintainable.
(3.) LEARNED Counsel for the revisionist submitted that since the application under Section 156 (3) Cr. P. C. had been filed against him and the order will definitely affect him prejudicially he has got a right to maintain the revision. He further contended that after an order under Section 156 (3) is passed the police has got no option but to register the FIR against him, therefore, the revisionist have got a right to challenge the said order passed by the learned Magistrate in as much as his fundamental right is jeopardized He further contended that the Magistrate must hear the accused at the stage of 156 (3) Cr. P. C. and therefore, also the impugned order deserves to be set aside. He relied upon a reported judgment in Ajai Malviya v. State of U. P. , 2000 (2) JIC 636 (All) : 2000 (4) ACC 435. Learned AGA on the other hand contended that the Magistrate was not obliged to hear the accused at the stage of 156 (3) Cr. P. C. as he was exercising the administrative power of control over the police by passing a judicial order. He submitted that the contentions raised by the learned Counsel for the revisionists are against the basic principles of criminal law and Section 156 (3) Cr. P. C. He further submitted that Supreme Court had laid down in many judgments that the accused has no right of hearing before being summoned. He further submitted that passing of an order under Section 156 (3) Cr. P. C. the Magistrate had only directed the registration of the case and its investigation and the accused has got no right to challenge the aforesaid order of registration of F. I. R. He can challenge the F. I. R if it does not discloses commission of a cognizable offence in a writ petition. He further submitted that Section 397 and 401 Cr. P. C. is not at all applicable against such an interlocutory order of registration and investigation and this revision is not maintainable and deserves to be dismissed. He also submitted that Ajai Malviya's case (supra) does not laid down good law and is per-incurium being contrary to Section 397 (1) and (2) Cr. P. C. and the law laid down by Apex Court that order under Section 156 (3) Cr. P. C. is a pre-cognizance order.;