AJAI MALVIYA Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The first information report dated 6-8-1998 on the basis of which case crime No. 743 of 1998 under Section 406/420 IPC has been registered at police station Chakeri, district Kanpur Nagar is sought to be quashed by means of this writ petition under Article 226 of the Constitution. A direction to the respondents not to arrest the petitioner in the case aforestated during the course of investigation has also been sought besides the relief of certiorari.

(2.) Concededly the impugned F.I.R. has been registered pursuant to an order under Section 156(3) of the Code of Criminal Procedure, 1973 (in short the Code) directing the police to register and investigate the case. At the very outset a question arose as to whether the writ petition for quashing the impugned F.I.R. sans any challenge to theorder under Section 156(3), Cr. P.C. passed by the Magistrate is maintainable. Sri Bhagwati Prasad, learned counsel appearing for the petitioner urged that the order under Section 156(3) of the Code has the complexion of an administrative order and hence it is neither revisable under Section 397 of the Code nor open to challenge under Section 482 of the Code and, therefore, the F.I.R. could be quashed by this Court under Article 226 of the Constitution in case the Court is of the opinion that taken in its entirety the F.I.R. does not disclose commission of a cognizable offence.

(3.) We have considered the submissions made by Sri Bhagwati Prasad learned counsel appearing for the petitioner. There is no denying the fact that in case the order under Section 156(3) of the Code pursuant to which the impugned F.I.R. has been registered is held to be a judicial order, the petitioner will have remedy under the Code to challenge the said order and on this ground alone this Court would be justified in declining to invoke its extraordinary jurisdiction under Article 226 of the Constitution. True, alternative remedy is not an absolute bar but a writ cannot issue in derogation of a judicial process. In the instant case the order under Section 156(3) of the Code pursuant to which the F.I.R. has been registered and investigation commenced is not under challenge before us and, therefore, this Court would not be justified in interfering with the process of investigation commenced on the basis of an unchallenged order under Section 156(3) of the Code. In support of his contention that the order passed by the Magistrate under Section 156(3) of the Code is not a judicial order, Sri Bhagwati Prasad has submitted that investigation being an executive function, any order directing investigation cannot acquire the complexion of a judicial order. Learned counsel has placed reliance on Section 2(i) of the Code which defines the expression "judicial proceeding" as including "any proceeding in the course of which evidence is or may be legally taken on oath".