India: 156(3), CrPc: Interlocutory Or Not? Treading A Paradoxical Course

Last Updated: 23 November 2018
Article by Wasim Beg and Karan Dev Chopra

The term "interlocutory order" is a term that has no lack of well-known legal significance and appears to present no complex difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. The Webster's New World Dictionary defines "interlocutory" as an order other than final decision. The prima facie simplicity however, has led to severe complexities in the interpretation of the same so far as an order under Section 156(3) of the Code of Criminal Procedure, 1973 is concerned. The Apex Court as far back as in 1977 in its ruling in Amarnath v. State of Haryana observed that the term "interlocutory order" in Section 397(2) of the 1973 Code had been used in a restricted sense and not in any broad or artistic sense. It merely denoted orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. It went on to say that an order which substantially affects the right of the accused or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to a Superior Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code, per contra, orders which are matters of the moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of a Superior Court.

The issue whether an order passed under Section 156(3) of the Code would be amenable to the revisional jurisdiction has met with a myriad of responses from High Courts across the country. A Full Bench of the Allahabad High Court,when seized of the said issue in the decision reported as 2011 (2) ALJ 217 :Father Thomas v. State of U.P. had said that a prospective accused had no locus standi to challenge a direction for investigation under Section 156(3) Cr.P.C by filing a revision petition before cognizance or issuance of process against him. The Allahabad High Court decided that a revision petition against such an order directing registration of FIR under Section 156(3) Cr.P.C was not maintainable. The Full bench noted that the accused had a right to raise his defence only during the course of trial and even on filing of complaint, when the Magistrate proceeds to take cognizance, the prospective accused cannot intervene or raise his defence unless summons are issued. Thus, a direction to register an FIR, in the view of the Allahabad High Court was not inherently revisable, being interlocutory in nature.

Only three years later, a Full Bench of the same High Court was embraced with the similar issue, only with different undertones, the issue before the High Court now, in Jagannath Verma v. State of U.P was whether an order rejecting the prayer of the complainant or the informant to register an FIR, would be amenable to a revision. The Full Bench, while distinguishing the Full Bench in Father Thomas went on to hold that an order of the Magistrate rejecting an Application under Section 156(3) of the Code for the registration of a case by the Police and for investigation is not an Interlocutory Order and is therefore amenable to the remedy of a Criminal Revision under Section 397. The conundrum thus, continued.

The issue was far from finding any solace, A year later a Division Bench of Bombay High Court in its decision in Avinash v. State of Maharashtra, opted to take a different stance thereby holding that the order passed directing police to investigate under Section 156(3) of the Code is not an interlocutory order, but in the nature of a final order terminating the proceedings under Section 156(3) of the Code which would therefore be revisable. The Bombay High Court's decision finds its genesis in the reasoning that once the Magistrate passes an order under 156(3), nothing further is required to be done by the Magistrate, thus attaching a finality to the order. This decision of the Bombay High Court thus paved way for a revision to be preferred in both scenarios regardless whether the application under 156(3) of the Code was dismissed or allowed, thus, in a way, making the accused within Maharashtra better placed than an accused in Uttar Pradesh.

The same year as the Bombay High Court's ruling in Avinash v. State of Maharashtra, a Single Judge of the Chattisgarh High Court in Amarnath Agarwal v. Jai Singh Agarwal had  the occasion to hold that an order passed by the concerned Magistrate under Section 156(3) of the Code does envisage any findings against the accused nor does it include any sentence passed against the accused, thereby making it an interlocutory order in the flesh and hence alien to the remedy of a criminal revision. The Chattisgarh High Court was of the view that if a revision against such an order would lie, then the Sessions Court would in a way be clothed with the powers akin to that available to High Courts under Section 482 of the Code.

What comes to light from the above is that one High Court's Full bench decision goes on to say that a direction under Section 156(3) of the Code to register an FIR is not revisable whilst another Full Bench of the same High Court has held that a direction rejecting the application under Section 156(3) of the Code to register an FIR is amenable to the remedy of a criminal revision. Another High Court does not accord the benefit of a revision to any direction under Section 156(3) of the Code and then another High Court extends the benefit to all orders passed under Section 156(3) of the Code. Thus the "simplicity" hastily unfolds into a twilight of complexity and this ambiguity seeks to displace the maxim "Ubi Jus Ibi Remedium", the dichotomy doesn't conclude there, the Delhi High Court has dealt with the present issue at length in its ruling in Nishu Wadhwa v. Siddharth Wadhwa reported as 2017 SCC OnLine Del 6444 holding that an order dismissing or allowing an application under Section 156(3) Cr.P.C is not an interlocutory order and a revision petition against the same is maintainable. The Delhi High Court relied upon its own judgment in Gabrani Infrastructure wherein the High Court had ruled that once directions for registration of FIR are given under Section 156(3) Cr.P.C., the Magistrate becomes functus-officio and has no jurisdiction to interfere in the investigation.

The position as explained has led to a fog of confusion with regard to the maintainability of a revision petition qua orders passed in a 156(3) application, a seminal issue that hasn't yet witnessed the corridors of our Top Court. A corollary that arises from the above debate is of equal significance when tested on the anvil of the principle of Audi Alteram Partem, the golden principle of natural justice that echoed throughout the judgment of the Supreme Court in Maneka Gandhi. Going forward, if the final position of law is accepted to be that of what Bombay and Delhi have ruled, thus according an accused, the right to prefer a revision petition against an order under 156(3) that directs the registration of an FIR against him. The anomaly that the Code prescribes is indeed a curious one, it is trite law that a prospective accused has no right of audience before a Magistrate in proceedings under Section 156(3) of the Code, thereby no opportunity is given to the prospective accused to defend his case and convince the Court that an FIR ought not be registered against him. Assuming that a Court passes an order rejecting the prayer for registration of an FIR against a prospective accused, and the complainant, as is his right, prefers a criminal revision that would seek registration of an FIR. The same prospective accused is now bestowed with a statutory right to be heard before the Revisional Court on the strength of section 401(2) of the Code which mandates that no order shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard, thus leading to a paradoxical situation. The order that could be passed by the Superior Court in exercise of its revision jurisdiction while allowing such a revision would be inter alia, to direct the registration of an FIR against the accused, but in this case the accused had a right to present his defence before the Court and whereas if the Court of the Magistrate had allowed the application under 156(3), the same order directing he registration of an FIR against the accused would have been passed, an order, prejudicial to the accused in equal measure, but only this time, without extending any opportunity to the accused to be heard and make arguments in his defence.

The cloud of haze is only thickened, as firstly, there is a patent lack of clarity when it comes to determining the "interlocutory" nature of an order passed under Section 156(3) of the Code. The diverse stands of the Nation's High Courts continue to cast a deep shadow of doubt as to whether a criminal revision will be maintainable or not, and at whose behest in an order emanating from a proceeding under Section 156(3) of the Code. Secondly, a paradoxical question remains unanswered as how and why an accused, who is armed with no right to be heard before a Magistrate in an original 156(3) proceeding is armed with the a right of audience before the Revisional Court in a criminal revision arising from the very same proceeding. Courts have attributed such a right on the reasoning of natural justice, besides being a statutory entitlement and have also recognised this right as emanation of the much venerated constitutional rights to fair procedure, fair treatment and objective decision making. As much as such an attribution of this kind stands test on the anvil of logical reasoning and constitutional safeguards, it does make one wonder as to why the same rights lose colour where an original proceeding under 156(3) is concerned, any prejudice that may be caused to an accused or a prospective accused at the stage of a revision before a Revisional Court, which clothes him with the right to be heard and defend his case, could be caused in equal measure before the Court of the Magistrate. The plot thickens when one considers the situation that the Revisional Court could pass the identical order in a criminal revision, directing registration of an FIR against the accused which the Court of the Magistrate also could have passed, only this time, after hearing the same accused who was turned away unheard by the Magistrate.

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