- (1.) M. K. Mittal, J. This application has been filed under section 482 Cr. P. C. for setting aside the order dated 6. 9. 2007 passed by Sessions Judge Basti, in Criminal Revision No. 451/07, Nagendra Tiwari v. State of U. P. and another, with the further prayer to restore the order dated 13. 4. 2007 passed by the learned Magistrate directing for registration and investigation of the case under section 156 (3) Cr. P. C.
(2.) HEARD Sri Ravindra Prakash Srivastava the learned Counsel for the applicant, learned AGA and perused the material on record. The brief facts of the case are that the applicant filed an application under section 156 (3) Cr. P. C. alleging that on 12th December, 2005 at about 10. 00 in the day Awadesh Prasad Tiwari, Ram Krishna Tiwari, Ram Singhasan Tiwari and Nagendra Tiwari armed with lathis and dandas came near the canal in village Bhitiya Digar where he and his brother Sadhu Prasad were grazing pigs. These persons abused the informant and his brother and also called them with caste denoting words and beat them with lathis and dandas. On the alarm raised the witnesses came and saved them. The informant and his brother received injuries. The learned Magistrate finding a prima facie case directed for registration and investigation of the case and further directed the S. O. concerned to submit compliance report within three days. Against that order Nagendra Tiwari filed Criminal Revision No. 451/07 in the Court of Sessions Judge Basti and the learned Sessions Judge by the impugned order dated 6. 9. 2007 held that the revision was maintainable and that in view of section 156 (3) Cr. P. C. the Station Officer of a police station could only investigate the matter. But in this case allegations were also under the SC/st Act and that case could be investigated by officer not below the rank the Deputy Superintendent of Police and therefore, no such direction could have been issued by the learned Magistrate. Feeling aggrieved, the present application has been filed. Learned Counsel for the applicant has contended that the revision as filed in the Court of Sessions Judge against the order of the learned Magistrate was not competent because Nagendra Tiwari is only a prospective accused and he had no locus standi to file revision and the learned Sessions Judge erred in holding that the revision was maintainable. This contention of the learned Counsel for the applicant is correct. If an application is filed under section 156 (3) Cr. P. C. in the Court of a learned Magistrate, it is a matter between the applicant and the Court and the accused does not come into picture as no cognizance of the offence is taken in the matter. If the learned Magistrate finds that a prima facie case is made out which requires investigation, he can direct for registration and investigation under section 156 (3) Cr. P. C. Unless the report is registered against the person named therein as accused, his legal or fundamental rights are not infringed and he has no locus to challenge that order. The Hon'ble Apex Court has laid down in several cases that the accused does not have any right to interfere in the registration of an FIR or investigation of the same. In the case of Amar Nath v. State of Haryana, 1977 SCC (Criminal) 585. it has been held that the accused has got no right to be heard before he is summoned and no proceeding in his respect takes place before that stage. Therefore, Nagendra Tiwari had no right to file the revision against the order passed by the learned Magistrate and the learned Sessions Judge has erred in holding that the revision was maintainable.
(3.) LEARNED Sessions Judge has also observed that in this case the offence was also allegedly committed within the provisions of the SC/st Act and that could only be investigated by an Officer not below the rank the Deputy Superintendent of Police and therefore, the learned Magistrate could not have directed for registration and investigation of the case under section 156 (3) Cr. P. C. In order to arrive at this conclusion the learned Sessions Judge has placed reliance on the case of C. B. I v. State of Rajasthan2001 (42) ACC 451 (SC ). But the learned Sessions Judge has not correctly interpret the law as laid down in that case. In paragraphs 9, 10, 11 it has been held as under:- " 9. It is clear that a place or post declared by the Government as police station, must have a police officer in charge of it and if he, for any reason, is absent in the station house, the officer who is next in the junior rank present in the police station, shall perform the function as officer in charge of that police station. The primary responsibility for conducting investigation into offences in cognizable cases vests with such police officer. Section 156 (3) of the Code empowers a Magistrate to direct such officer in charge of the police station to investigate any cognizable case over which such Magistrate has jurisdiction. 10. In this context reference has to be made to section 36 of the Code which says that: " 36 Police Officers superior in rank to an officer in charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station. " 11. This means any other police officer, who is superior in rank to an officer in charge of a police station can exercise the same powers of the officer in charge of a police and when he so exercise the power he would do it in his capacity as officer in charge of the police station. But when a Magistrate orders investigation under section 156 (3), he can only direct an officer in charge of a police station to conduct such Investigation and not a superior police officer, though such officer can exercise such powers by virtue of section 36 of the Code. Nonetheless, when such an order is passed, any police officer superior in rank of such officer, can as well exercise the power to conduct an investigation and all such investigations would then be deemed to be the investigation conducted by the officer in charge of a police station. Section 36 of the Code is not meant to substitute the magisterial power envisaged in section 156 (3) of the Code, though it could supplement the powers of an officer in charge of a police station. It is permissible for any superior officer of police to take over the investigation from such officer in charge of the police station either suo motu or on the direction of the superior officer or even that of the Government. " Therefore, if any order is passed by the learned Magistrate under section 156 (3) Cr. P. C. and if investigation is required to be made by any officer above the rank of police officer in charge of the police station, there is no bar and such matter can be investigated by his Superior Officer also.;