Source: Bombay High Court

Why in News?

Recently, the Bombay High Court in the matter of Arun P. Gidh v. Chandraprakash Singh and Ors., has held that a Court in its revisional jurisdiction cannot quash an FIR registered pursuant to the magistrate's order to police under Section 156(3) of the Criminal Procedure Code, 1973 (CrPC) to investigate a cognizable offence.

What was the Background of Arun P. Gidh v. Chandraprakash Singh and Ors. Case?

• In this case, the petitioner, a former Municipal Councilor of Kalyan Dombivali Municipal Corporation, lodged a complaint purportedly espousing the cause of the tenants of Manek Colony, which was under re-development.
• The substance of the accusation was that the officers of the Municipal Corporation in connivance with the developer committed various acts of omissions and commission resulting in grave prejudice to the eligible occupants of the Manek Colony and wrongful gain to the developer.
• The Judicial Magistrate, First Class, Kalyan, directed the police to investigate the complaint under Section 156(3) of the CrPC.
• Following this, an FIR was registered.
• However, the accused filed a revision application challenging the magistrate's order. The Additional Sessions Judge allowed the revision application, dismissing the complaint.
• Thereafter, writ petitions were filed before the Bombay High Court challenging the Sessions Court order.
• The Single Judge noted conflicting views in previous judgments regarding maintainability of revision against orders under section 156(3) CrPC and referred the matter to a larger bench.
• The larger bench court identified a conflict arising when writ petitions and applications for quashing of FIR are declined on the basis that revision under Section 397 of CrPC is an alternative remedy against an order under Section 156(3).
• The High Court directed that the petitions be now placed before the respective benches for decision in accordance with law.

What were the Court’s Observations?

• A bench comprising of Justices Revati Mohite-Dere, NJ Jamadar and Sharmila U Deshmukh observed that a court in its revisional jurisdiction cannot quash an FIR registered pursuant to the magistrate's order to police under section 156(3) CrPC to investigate a cognizable offence.
• It was also stated that the FIR is a statutory power of the investigating agency and would not stand quashed if the revision court sets aside the magistrate's order.
• It was further stated that revision under Section 397 of CrPC is not an efficacious remedy against an order of the magistrate directing investigation under Section 156(3) after the registration of an FIR.

What are the Relevant Legal Provisions Involved in it?

Section 156(3) of CrPC

About:

• Section 156(3) of CrPC states that a Magistrate who is empowered to take cognizance under Section 190 of Code may order investigation for the cognizable offence.
• An application under section 156(3) of CrPC discloses the cognizable offence, then it is the duty of the concerned Magistrate to direct registration of the FIR, which is to be investigated by the Investigation Agency, in accordance with law.
• If the information received does not disclose the commission of cognizable offence apparently, but indicates necessity for inquiry, the preliminary inquiry may be conducted in order to ascertain whether the cognizable offence is disclosed or not.
• Any judicial magistrate may order an investigation under Section 156(3) of CrPC before taking notice of the offence.

Case Laws

• Har prasad v. State of U.P (2006), the Supreme Court held that if the application under Section 156(3) CrPC. discloses the commission of cognizable offence and at the stage of Section 156(3) CrPC, which is the cognizable stage, once the cognizable offence is disclosed through an application, it was the duty of the concerned Court to order for registration and investigation of the offences, as crime detection and crime prevention are the foremost duty of the police and not of the Court.
• Lalita Kumari v. Govt. of U.P (2014), the Supreme Court held that if the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

Section 397 of CrPC

• This Section deals with the calling for records to exercise powers of revision. It states that -

(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself; to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling, for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement that he be released on bail or on his own bond pending the examination of the record.

Explanation. —All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section 398.

(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.