Whether a revision petition under section 397 Crpc can be filed against an order passed under Section 156(3) Crpc.

The author discusses whether a revision petition under section 397 Crpc can be filed against an order passed under Section 156(3) Crpc. The author further discusses the relevant and landmark judgments on the same.

FIR is commonly known as the First Information Report is the first line of defence by any victim of a crime. A victim approaches the police officer with the faith that the officer might help him receive justice for the harm suffered. However, all officers may not help the victim. Some outrightly refuse the victim his/her right of registering an FIR. They refuse of various grounds such as the crime was trivial and does not require an FIR or he may be influenced by a politician/ opposite party. We will focus here on section 397 Crpc and 156(3) Crpc.

The victim may think he doesn’t have any other option. However, he does. He can approach the Superintendent of Police with an application stating the crime and the refusal made by the police officer to register an FIR. The Superintendent may order the police officer to register an FIR and investigate the matter in the earliest under as provided in Section 154 (3) of the Criminal Procedure Code. But what happens if the Superintendent of Police also refuses to register an FIR or the FIR gets registered but no investigation is done? What will the victim do now? Section 156(3) of the Criminal Procedure Code states the power of the Magistrate for ordering an investigation on written application by the victim.

But is the power given to the Magistrate sufficient? Does this power come under the scope of revision under Section 397 Crpc, that states the power of courts to call for records to exercise powers of revision? What are the powers conferred to the Magistrate in Section 156(3)? What is the status of orders passed by the said Magistrate under Section 156(3)? What happens if the Revision petition is allowed or not allowed and which court should be approached for the same?

I will be discussing all the answers for all the above questions in this article one by one, slowly and steadily so that it can be easily comprehended.

Topics Covered in this article

Section 156 of CrP.C and the Power of Magistrate under Section 156(3) of CrP.C

Section 156 deals with the power of police officers to investigate cognizable offenses. It states the power of police officers to register and investigate any given matter within the local jurisdiction of his station. It also states that no proceeding of a police officer can be questioned on the ground of jurisdiction. Not just this, this section also gives power to the magistrate to order an investigation to be done by the police officer as stated in section 156(3): “Any Magistrate empowered under section 190 may order such an investigation as above- mentioned.”[1] This part of the section leaves the power of the magistrate as not defined. The magistrate can order the police officer to investigate, or register a FIR or can also monitor the investigation done. Monitoring of the investigation means if the FIR is registered and investigation has also been done, but the aggrieved person is not satisfied with the conduct of the investigation. This view was given in the case of Sakiri Vasu v. State of Uttar Pradesh and Others.[2]

According to the judgements of the Hon’ble Supreme Court, namely, Union of India v Paras Laminates[3]and Reserve Bank of India v. Pearless General Finance and Investment Company[4], it is mentioned that even though the section tightly worded and does not explain in detail the actual powers of the magistrate it should be understood that it gives the authority to the Magistrate to entertain the matter quickly and efficiently by either order to register a FIR or investigate in the matter correctly by the police officer or himself.

Also Read  Whether the aid and advice theory has any relevance in the Constitution of India?

Also, in the case of Mohd.Yousuf v. Smt. Afaq Jahan and Anr.[5] It was stated that the magistrate before taking cognizance should order the police to register a FIR as it includes only the basic details and involves only the process of entering the substantial details that are related to the offense. Even if the Magistrate does not explicitly say that the FIR should be registered, it should be done the moment the order is being complied with.

This section also gives the power to re-investigate into a matter even when the report of the investigating officer has been submitted under Section 173(8), as stated in the case of State of Bihar v. A.C. Saldanna.[6]

Under this section, the magistrate can independently investigate as well and this does not affect the power of the investigating officer. This power is condemned in a lot of judgements stating that the power of investigating officer is taken away bythe magistrate, which in my opinion is not true as this step is taken by the magistrate only to further investigate the matter and provide justice and is done when he feels that the investigation carried on by the police was not sufficient.

Section 156 is mainly regarding investigation of a matter and the manner in which it is to be done by either a police officer or a magistrate when the work done by the police officer is inconsistent and not enough. This section also gives immense power to the Magistrate to deal with incompetency regarding the investigation of a matter. But the question remains what happens if the victim is still not satisfied with the type of investigation done?

Section 397 Crpc

This section gives the power to call for records by any High Court or Sessions Court to examine the investigation done by the police or the sentence given by any inferior court to check its correctness and to see whether the sentence given was justified in providing justice to the victim or not. Due to this section, the execution of the sentence is also temporarily stopped until the proceedings are going on. This section along with two others combined form the way by which revision of a matter is taken up in a court.

Section 397 Crpc states “The powers of revision conferred by subsection (1) shall not be exercised concerning any interlocutory order passed in any appeal, inquiry, trial or other proceedings.[7] This section bars the use of revision petition under an interlocutory order in front of any court but due to various judgements with the question of whether a revision is allowed in matters of interlocutory orders or not, High Courts of the country were of different opinions.

In the case of Father Thomas v. State of Uttar Pradesh[8]Allahabad High court thought that interlocutory order does not need revision. It was noted by the bench that this chance at revision is not to be used when the accused has the right to defend himself during the trial and even when the complaint is filed or cognizance is taken by the Magistrate. The accused should not intervene in the process unless summons is issued to him. But the same bench stated three years later, that if the case needed then it could be allowed that the accused has a right to defend himself before any action is taken against him in the case of Jagannath Verma v. State of Uttar Pradesh.

The same issue was taken up by the Bombay High Court in the case of Avinash v. State of Maharashtra[9]stating that revision should only be taken up in the case of a final order as there is no scope of defending the accused further. The same year in another judgement by the Chhattisgarh High Court stated that if this power of revision is given to Sessions Court it would mean that the power conferred to these courts would surpass the powers of the High Court thus the revision should not be given to interlocutory orders.

Also Read  Cannibalism: Custom a valid Justification?

In the case of Madhu Limaye v. State of Maharashtra, the question of inherent powers was decided where the court said that the bar to entertain interlocutory orders in Section 397 Crpc cannot be treated as a bar to entertain them in Section 482 of the Criminal Procedure Code which gives the ambit of power to the High Court and cannot be listed exhaustively. The same view was shared in the case of Raj Kapoor v. State[10].

Also, in the case of Rajan Kumar Machananda v. State of Karnataka[11]it was held that once the revision petition is filed, the accused cannot approach the High Court with its appeal. The reasoning is given was that if every accused person is allowed to appeal, every accused would like to go for revision and that would mean the explicit use of section 482 of the Code resulting in duplicity of matters in all the High Courts.

Thus, in simple words, it seems as if there is no revision under Section 397 Crpc in cases of interlocutory orders until the Supreme Court decides on this matter. This confusion will continue till a final verdict is given as all the judgements till date on this matter is contradictory. It generally means that the revision is case-specific, that is, revision under Section 397 would result on the facts. Now that this is finalized, we can come to the question of whether an order under Section 156(3) CrP.C is an interlocutory order or not? If it is not interlocutory then is it final or is it a mixture of both?

Is the order under Section 156(3) an interlocutory order?

The section states “Any Magistrate empowered under section 190 may order such an investigation as above- mentioned.[12] The section empowers the magistrate to take cognizance and direct the police to register FIR or investigate properly, as we have discussed above. In the case of Amarnath Agarwal v. Jai Singh Agarwal, the Chhattisgarh High Court stated that the order under Sec156(3) is an interlocutory order only when seen from far but once you scrutinize it, you realize it is a final order as it terminates the proceedings under the same section, thus the accused has a right to file for revision under Section 397.  The High Court also proceeded to say that if the right to revision is allowed then, the power of the magistrate equates to the power given to the High Courts in section 482 of the Code.

In the light of the above judgement, the Delhi High Court in its judgement of Nishu Wadhwa v. Siddharth Wadhwa[13]elaborated on the matter stating that the order under Section 156(3) is not an interlocutory order and a revision against the same is maintainable.

Also Read  Syed Farooq Mohammad v. Union of India and Anr

If we consider the order under Section 156(3) an interlocutory order, we can say that we are giving a chance to the accused to defend himself even before the trial commences, and if we consider it a final order, we can say that the right to defend himself that the accused has can only be used during the trial, which might result in the acquittal or sentencing of the accused.

To this day, it is not final whether the order of Section 156(3) is interlocutory or final. If the view of Bombay and Delhi high courts are taken into consideration, the accused has a right of revision if the order of registration of a FIR or investigation is made against him, but at the same time, the view of Chhattisgarh High Court is taken into consideration, then the case becomes different and the accused has no right to revision. The final decision, thus, remains in the hand of the court to see whether the case requires any revision or not.

Conclusion

In respect to all the discussions in the above article, the only acceptable solution would be that the order under Section 156(3) is neither an interlocutory order nor a final order. It depends on the arguments presented in the defense of the accused and whether the circumstances provide enough doubt for the Magistrate to accept the revision in favor of the accused.

The second conclusion would be that revision cannot be allowed under Section 397 Crpc to interlocutory orders as is written as these orders do not need revising as they are already temporary orders that are automatically revoked once their purpose is finished.

The question for the article was whether revision can be filed against an order under section 156(3). The answer to this question is no, it cannot, as the more we see into the matter, we understand that the order is interlocutory till the Magistrate is not forced to investigate himself and the police do its job properly. Once the Magistrate has to do the police’s job for them, it becomes a final order and the Magistrate uses his power correctly and as he deems fit to take cognizance in the name of justice.

As the order is interlocutory, Section 397 Crpc bars the revision of an interlocutory order and, thus, it is not possible. But there is a way out of this muck, the accused can be granted a way out as he can produce evidence to support his claim, and argue that the order passed against him was made in haste and no time for the defence was given to him. The accused can use the various judgement of High Courts to support his claim and can file revision to prove his innocence.

Also read Can Competition Commission of India Take Cognizance Of Anti-Competitive Behavior?


[1] Section 156 of Criminal Procedure Code

[2] 2007 (10) SC 585

[3] AIR 1991 SC 696

[4] AIR 1996 SC 646

[5] JT 2006(1) SC 10

[6]1980 Cri LJ 98 (SC

[7] Section 397(2) Criminal Procedure Code

[8] 2011 (2) ALJ 217

[9] 2015 ALL MR (Cri) 2484

[10] 1980 1 SCC 43

[11] 1990 (supp.) SCC 132

[12] Section 156(3) Criminal Procedure Code

[13] 2017 SCC Online Del 6444