Revisional jurisdiction cannot quash an FIR
The Bombay High Court held recently 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.
A full bench of Justice Revati Mohite-Dere, Justice NJ Jamadar and Justice Sharmila U Deshmukh observed that FIR is a statutory power of the investigating agency and would not stand quashed if the revision court sets aside the magistrate's order.
“registration of the FIR is not inexorably consequential to the order passed by the Magistrate under Section 156(3) of the Code. At the cost of repetition, it must be noted that the registration of the FIR by the police, upon a cognizable offence having been reported, is the statutory duty of the police. As a principle, therefore, we find it difficult to agree with the submission of Mr. Desai that once the order directing investigation under Section 156(3) is set aside, everything which follows must fall through.”
The court underscored that the power to quash investigations or prosecutions lies within the realm of writ jurisdiction under the Constitution or inherent powers under Section 482 of the CrPC, aimed at preventing abuse of the legal process or ensuring justice.
The larger bench held 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. However, the court emphasized that the remedy of revision would not become redundant once the FIR is registered, and the revision court order would still have utility as high court can take it into account while considering writ petition for quashing the FIR.
“If such an order is passed before the completion of investigation, the investigating agency may take the same into account in determining the course the investigation shall culminate into. If such an order is passed, post lodging of the chargesheet, the jurisdictional Magistrate may have the benefit of the said order at the stage of taking cognizance or during the course of the inquiry, as envisaged by the Code. The High Court may also have due regard to the order of the revisional Court while considering the prayer for quashing the FIR and/or prosecution in exercise of writ or inherent jurisdiction.”
The court suggested that before the revisional court makes any decision, it should confirm whether the FIR has been registered following the magistrate's order. It identified two scenarios: pre-registration and post-registration of the FIR.
In the scenario where the FIR is not yet registered, the court held that the revisional court should issue an interim order staying the effects of the magistrate's order under Section 156(3). This interim order would prevent the investigating agency from registering the FIR and proceeding with the investigation until the revisional court's decision.
If the FIR has already been registered, the nature of the infirmity in the magistrate's order becomes relevant, the court said. The revisional court may stay further proceedings pursuant to the FIR if it finds a jurisdictional error in the order, if the investigation is still ongoing. The court emphasized that the revisional court must record reasons for its decision to stay proceedings based on jurisdictional errors.
However, if the investigation has progressed to the point of lodging a chargesheet or court cognizance, the interim or final order passed by the revisional court to set aside the magistrate's order under Section 156(3) would not automatically quash the resultant prosecution, the court held.
The court answered thus a reference by a single judge is a batch of writ petitions regarding a cheating case involving Municipal Commissioners and officers of the Kalyan-Dombivali Municipal Corporation (KDMC).
A former Municipal Councilor of KDMC had filed a complaint concerning the redevelopment of Manek Colony. He alleged collusion between municipal officers and a developer, resulting in prejudice to the colony's occupants. The complaint cited offenses under Sections 120B, 420, 418, 415, 467, 448 read with Section 34 of the IPC and Sections 9 and 13 of the Prevention of Corruption Act, 1988.
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.
Subsequently, writ petitions challenging the sessions court order were brought before the High Court. 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 under Section 482 of the CrPC for quashing of FIR are declined on the basis that revision under Section 397 CrPC is an alternative remedy against an order under Section 156(3), even if it has led to the registration of an FIR and subsequent proceedings.
The question before the court was whether revision under Section 397 CrPC is an efficacious remedy against an order directing investigation under Section 156(3) CrPC, even after the registration of an FIR and subsequent proceedings, and to what extent the revisional court can intervene in the investigation post-registration of the FIR.
In instances where police inaction persists or ineffective investigation occurs, individuals can seek recourse through a Magistrate under Section 156(3). This provision empowers the Magistrate to supervise the investigation agency if the investigating agency has not registered FIR even though a cognizable offence is disclosed or despite having registered the FIR, has not conducted proper and effective investigation.
The court emphasized that the order under Section 156(3) merely reminds the police of their statutory duty to register FIRs and conduct investigations. The court said that setting aside an order under Section 156(3) will not automatically nullify all subsequent actions, such as FIR registration and investigations as actions following such orders, including arrests, remands, chargesheets, and court cognizance, are carried out under statutory authority.
The court directed the petitions to be placed to respective benches for further proceedings.
Case no. – Writ Petition No. 2517 of 2022
Case Title – Arun P. Gidh v. Chandraprakash Singh and Ors.
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