JAGANNATH VERMA Vs. STATE OF U P

JUDGEMENT

(1.) THE reference to the Full Bench The reference to the Full Bench has been occasioned upon two orders passed by learned Single Judges of this Court. By the first of those orders, the following question was referred for consideration:

(2.) THE present case In the proceedings in which the present reference to the Full Bench has been occasioned, an application was moved before the Chief Judicial Magistrate, Ambedkar Nagar against the petitioners by opposite party No. 2 under Section 156(3). The Magistrate, after considering the contents of the complaint, came to the conclusion that there was no ground for directing the police to register and investigate the case, upon which the application under Section 156(3) was rejected. Aggrieved, opposite party No. 2 preferred a revision before the Sessions Judge which was allowed and while setting aside the order of the Chief Judicial Magistrate, the latter was directed to decide the application under Section 156(3) afresh. Aggrieved by that order of the Sessions Judge, this Court was moved by the petitioners. The submission of the petitioners was that (i) the Sessions Judge decided the revision without furnishing to them an opportunity of hearing though, according to them, they were necessary parties before the revisional Court since their "valuable rights" were going to be affected by the order that was sought before and was eventually passed by the revisional Court; (ii) in view of the decision of the Full Bench in Father Thomas, the remedy of a criminal revision was barred under Section 397(2) since an order passed by a Magistrate on an application under Section 156(3) is an interlocutory order.

(3.) THE learned Single Judge in a referring order dated 15 May 2014 observed that in Father Thomas, the Full Bench was examining a case in which a prospective accused had challenged an order passed under Section 156(3) by which the Magistrate had directed the registration of a First Information Report and an investigation. The learned Single Judge noted that in the decision of the Supreme Court in Aleque Padamsee v. Union of India, : (2007) 6 SCC 171, it has been held that even where the application of an informant for a direction to register and investigate under Section 156(3) is refused by the Magistrate, the remedy would not lie in filing a writ petition but in a complaint under Section 190(1)(b) read with Section 200 of the Code. In the view of the learned Single, under the provisions of the Code, a duty is cast upon the police to register and investigate a case whenever information of the commission of a cognizable offence is brought to the notice of the police. It is only when the police refuses to register a case in a cognizable offence that the informant may approach the Magistrate under Section 156(3) for a direction to the police to register and investigate. If the Magistrate finds from a perusal of the application that the commission of a cognizable offence is made out, he may direct the police to register and investigate. On the other hand, when the complaint does not disclose the commission of any cognizable offence, the Magistrate can reject the application. In some cases, it was held, the Magistrate may treat an application under Section 156(3) as a complaint and while taking cognizance under Section 190(1)(b), follow the procedure of a complaint case. The problem, it was noted, arises where an informant cannot himself collect evidence against the accused and produce it before the Magistrate. In such cases, investigation by the police is necessary. Where the Magistrate rejects an application under Section 156(3) without application of mind and the revision is held to be barred under Section 397, it was held that the informant would be left without a remedy because even if he files a complaint before the Magistrate, he may not be able to collect and produce all the evidence needed to prove the guilt of the accused.