Cr.

WP 159/14 & others

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BENCHATAURANGABAD

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INTHEHIGHCOURTOFJUDICATUREATBOMBAY

CRIMINAL WRIT PETITION NO.159 OF 2014

....PETITIONER.

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Avinash S/o Trimbakrao Dhondage,

Age: 41 years, Occu. Service as
Executive Engineer, PWD, Hingoli.
Versus

The State of Maharashtra,

Through Police Station Officer,
Shivajinagar, Nanded.

2}

Datta S/o Tulshiram Shembale,

Age: 44 Yrs., Occu. Agri, and Business,
R/o 133-B, Shiv Kripa Niwas, Shobha Nagar,
Nanded.
...RESPONDENTS.

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1}

( Respondent No. 2 is Orig. Complainant.)

Mr. N.B. Khandare, Adv. For Petitioner.

Mr. M.N. Nerlikar, A.P.P. For Res. No.1.
Mr. S.S. Thombre,Adv. for Respondent No.2.
WITH
CRIMINAL APPLICATION NO.219 OF 2014

Mohan S/o Vasantrao Sangvikar,

Age: Adult, Occu. Govt. Service as
Sub Divisional Engineer,
Public Works Sub Division (South),
At Present Sub Division ( Building),
At Nanded, Dist. Nanded.
....APPLICANT.
(Original Accused NO. 6)

Versus

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The State of Maharashtra,

Through Station Officer,
Police Station, Shivajinagar,
Nanded. Tq and Dist. Nanded.

2}

Datta S/o Tulshiram Shembale,

Age: 44 Yrs., Occu. Agri, and Business,
R/o 133-B, Shiv Kripa Niwas, Shobha Nagar,
Nanded.
...RESPONDENTS.

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1}

( Respondent No. 2 is Orig. Complainant.)

Mr. P.G. Godhamgaonkar, Adv. For Applicant.

Mr. S.S. Thombre Adv. for Respondent No.2.

Mr. M.N. Nerlikar, A.P.P. For Res. No.1.

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WITH
CRIMINAL APPLICATION NO.847 OF 2014

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Shankar S/o Vithalrao Totawar,

Age: 48 Years, Occu. Sub Divisional
Engineer, P.W.D. At Bhokar,
R/o Shashtri-Nagar, Nanded.
....APPLICANT.
( Accused NO. 4)

Versus
The State of Maharashtra,
Through Station Officer,
Police Station, Shivajinagar,
Nanded, at & District-Nanded.

2}

Datta S/o Tulshiram Shembale,

Age: 44 Yrs., Occu. Agri, and Business,
R/o 133-B, Shiv Kripa Niwas, Shobha Nagar,
Nanded.
...RESPONDENTS.

1}

( Respondent No. 2 is Orig. Complainant.)

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Mr. P.G. Godhamgaonkar, Adv. For Applicant

WITH

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Mr. S.S. Thombre [Link] Respondent No.2.

Mr. M.N. Nerlikar, A.P.P. For Res. No.1.

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CRIMINAL APPLICATION NO.901 OF 2014

Surendra Nemaji Gaware,
Age: 53 Years, Occu. Service as AE-II
Posted to work in P.W. Sub Division ( South),
Nanded,R/o Gokul, Bhagyanagar Road,
Kishor Nagar, Nanded.

2}

Surendra Dattatrya Waghmare,

Age: 54 Years, Occu. Service as Sec. Engineer,
Presently Posted to work in P.W. Sub Division ( North),
Nanded, R/o 37, Sakar, Kishor Nagar, Nanded.

3}

Maulana Mahamood Syed,

Age: 54 Years, Occu. Service as Sec. Engineer,
Posted to work in P.W. Sub Division, Hadgaon ,
R/o Block NO. 13/190, House No. 1-5-703,
Labour Colony, Nanded.
....APPLICANTS.

om

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1}

Versus

The State of Maharashtra,

Through Station Officer,
Police Station Shivajinagar,
Nanded, Tq. and Dist. Nanded.

2}

Datta S/o Tulshiram Shembale,

Age: 44 Yrs., Occu. Agri, and Business,
R/o 133-B, Shiv Kripa Niwas,
Shobha Nagar, Nanded.
...RESPONDENTS.

1}

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WITH

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Mr. Ajay [Link], Adv. For Applicant

Mr. S.S. Thombre [Link] Respondent No.2.
Mr. M.N. Nerlikar, A.P.P. For Res. No.1.

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CRIMINAL APPLICATION NO.1194 OF 2014

Deepak S/o Shankarrao Devatraj,

Age: 54 Years, Occu. Service,
R/o. Krishna, 59, Yashwant Nagar,
Near Pawde Wadi naka, Nanded 431 602.
....APPLICANT.

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1}

Versus

State of Maharashtra,
Through Station Officer,
Police Station Shivajinagar,
Nanded, at and Dist. Nanded.

2}

Datta S/o Tulshiram Shembale,

Age: 44 Yrs., Occu. Agri, and Business,
R/o 133-B, Shiv Kripa Niwas,
Shobha Nagar, Nanded.
...RESPONDENTS.

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1}

Mr. [Link],Adv. For Applicant

Mr. S.S. Thombre [Link] Respondent No.2.
Mr. M.N. Nerlikar, A.P.P. For Res. No.1.
WITH

CRIMINAL APPLICATION NO.4077 OF 2013

1}

Somnath S/o Rambhau Pawar,

Age: 41 Years, Occu. Agri,

2}

Bapu s/o Rambhau Pawar,

Age : 36 years, Occ. Agri.

3}

Rambhau @ Ramnath S/o Asaram Pawar,

Age: 56 Years, Occ. Agri.

4}

Sudam S/o Somnath Pawar,

Age: 27 Years, Occ. Agri.

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Balu @ Shravan S/o Somnath Pawar,

Age: 20 Years, Occ. Agri.

6}

Avinash S/o Shivaji Bhosale

Age: 22 Years, Occ. Agri.

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5}

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All R/o Sultanpur Tq. Shevgaon,

Dist. Ahmednagar.
....APPLICANTS.

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Versus
State of Maharashtra,
Through P.I. Police Station, Shevgaon,
Dist. Ahmednagar.

2}

Malan W/o Mahadu Pandit,

Age: 68 Years, Occ. Household,
R/o. Sultanpur, Tq. Shevgaon,
Dist. Ahmednagar.
...RESPONDENTS.
Mr. N.B. Narwade, Adv. For Applicants.
Mr. A.S. Reddy [Link] Respondent No.2.
Mr. M.N. Nerlikar, A.P.P. For Res. No.1.

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1}

WITH

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CRIMINAL APPLICATION NO.4955 OF 2015

1}

Sudam S/o Baliram Kanthale

Age: 50 Years, Occu. Agri and Service,
R/o Balasa Road, Jintur,
Tq. Jintur, Dist. Parbhani.
....APPLICANT.
Versus

1}

The State of Maharashtra,

Through Police Station, Jintur,
Tq. Jintur, Dist. Parbhani.

2}

Santosh S/o Gulabrao Thite,

Age: 27 Years, Occ. Agri.
R/o. Dhobi Galli, Jintur,
Tq. Jintur, District. Parbhani.
...RESPONDENTS.

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Mr. [Link] h/f Mr. M.D. Narwadkar, Adv

for the applicant.
Mr. M. M. Nerlikar, A. P. P. for Respondent No. 1.

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WITH

CRIMINAL APPLICATION NO.5320 OF 2015

Rahul S/o Vishwananth Kamble
Age: 38 Years, Occu. Service,
R/o. Vikram Nagar, Latur,
Dist. Latur.

2}

Vikas S/o Vishwananth Kamble

Age: 34 Years, Occu. Service,
R/o Devni, Tal. Devni
Dist. Latur.

3}

Vishwananth S/o Sopan Kamble

Age: 71 Years, Occu. Pentioner,
R/o Vikram Nagar,
Latur, Dist. Latur.

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1}

Sulochana W/o Vishwananth Kamble

Age: 64 Years, Occu. Household,
R/o As above.

5}

Sheshrao S/o Pandhari Kamble

Age: 62 Years, Occu. Business,
R/o As above.

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4}

6}

Nilabai W/o Sheshrao Kamble

Age: 55 Years, Occu. Household,
R/o As above.

7}

Sidharth S/o Sopan Kamble

Age: 55 Years, Occu. Service,
R/o As above.
....APPLICANTS.
Versus

1}

The State of Maharashtra,

Through Police Station Officer,
M.I.D.C. Police Station, Latur,
Dist. Latur.

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Prabhakar S/o Rangrao Karvande,

Age: 69 Years, Occ. Retired Teacher.
R/o. Vikram Nagar, Latur,
Dist. Latur.

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2}

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...RESPONDENTS.

Mr. S.D. Tawshikar, Adv. For Applicants

Mr. M.M. Nerlikar, A.P.P. For Res. No.1.
WITH

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CRIMINAL WRIT PETITION NO.229 OF 2014

Namdeo S/o Shankarrao Pitale,
Age: Major, Occu. Service,
(Block Development Officer,
Panchati Samati, Partur,
District Jalna.
(Presently under suspension)

ba
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1}

Versus

1}

The State of Maharashtra,

Through Police Station Partur,
District Jalna.

2}

Shriniwas S/o Ramrao Hajare,

Age: Major , Occ. Agri,
R/o. Pimparkheda, Post. Watur,
Taluka Partur, District Jalna.
...RESPONDENTS.

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....PETITIONER.

(No. 2 Orig. Complainant)

Mr.N.B. Khandare, Adv. For Petitioner

Mr.M.M. Nerlikar A.P.P. For [Link].1.

[Link],[Link] Res. No.2.

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WITH

CRIMINAL WRIT PETITION NO.259 OF 2014

Chandrashekhar S/o Vasantrao Tunge,
Age: 54 Years, Occu. Service,
as Superintending Engineer, PWD,
Snhanagar, Nanded,
Tq. and [Link]
....PETITIONER.

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1}

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Versus
The State of Maharashtra,
Through Police Station Officer,
Shivajinagar, Nanded.

2}

Datta S/o Tulshiram Shembale,

Age: 44 Years , Occ. Agri, And
Business,R/o. 133-B, Shiv Kripa Niwas,
Shobha Nagar, Nanded.

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1}

...RESPONDENTS.

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( Orig. Complainant)

[Link], Adv. For Petitioner.

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Mr.M.M. Nerlikar A.P.P. For [Link].1.

[Link],[Link] [Link].2.

1}

WITH

CRIMINAL WRIT PETITION NO.363 OF 2015

Dr. Nagendra S/o Bhujangrao Rathod,

Age: 41 Years, Occu. Service,
R/o C/o Budevchi Savlii Near New
Nagarpalika,
....PETITIONER.
Versus

1}

The State of Maharashtra,

Through Secretary,
Home Department,
Mantralaya, Mumbai 32

2}

Police Inspector,
Police Station, Mukhed,
Tq. and Dist. Nanded.

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...RESPONDENTS.

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WITH

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Mr.A.D. Ostawal,With [Link] and Mrs.S.D.

More, Adv for the Petitioner.
Mr. M. M. Nerlikar, Adv for Respondent No. 1 & 2.

CRIMINAL WRIT PETITION NO.661 OF 2015

Gangadhar S/o Shankarrao Pentewad,
Age: 51 Years, Occu. Service,
R/o. At Post Krushnur, Tq. Naygaon
Dist. Nanded.
....PETITIONER.

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1}

Versus

The State of Maharashtra,

Through Secretary,
Home Department,
Mantralaya, Mumbai 32

2}

Police Inspector,
Police Station, Mukhed,
Tq. and Dist. Nanded

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1}

om

3}

Sanjaysing S/o Balaji Devkate,

Age. 29 Years, Occu. Labour,
R/o. Shirur (D), Tq. Mukhed,
Dist. Nanded.
...RESPONDENTS.
Mr.K.D. Jadhav, Adv. For Petitioner.
Mr.M.M. Nerlikar A.P.P. For [Link]. 1 and
2.
WITH

CRIMINAL WRIT PETITION NO.732 OF 2015

1}

Sunil S/o Shivasmbh Swami,

Age: 36 Years, Occu. Service,
as branch Post Master,
R/o. Shelgaon Gauri, Tq. Naigaon,
Dist. Nanded.
....PETITIONER.

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10

The State of Maharashtra,

2}

Superintendent of Police Nanded,

S.P. Office Nanded, Dist. Nanded.

3}

Babu S/o Yadula Sayyad,

Age. 45 Years, Occu. Agri,
R/o. Dogargaon, Tq. Mukhed,
Dist. Nanded.

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1}

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Versus

...RESPONDENTS.

Mr.G.P. Shinde, Adv. For Petitioner.

Mr.M.M. Nerlikar A.P.P. For [Link]. 1 and
2.
WITH

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CRIMINAL WRIT PETITION NO.829 OF 2015

Sachin S/o Gangadhar Bodhanwad,
Age: 33 Years, Occu. Service,
R/o Nabhangan Apartment,
Hanumangadh Dist. Nanded.

om

1}

....PETITIONER.
Versus

1}

The State of Maharashtra,

Through Secretary,
Home Department,
Mantralaya, Mumbai-32

2}

Police Inspector,
Police Station, Mukhed,
Tq. And Dist. Nanded.
...RESPONDENTS.
[Link] [Link] and K.D. Jadhav, Advocates
For Petitioner.
Mr.M.M. Nerlikar A.P.P. For [Link]. 1 and
2.

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WITH

1}

Subhash S/o Anand Bodhare,

Age: 55 Years, Occu. Service,
R/o 202, Sai Gunjan Apartment
Professor Colony, Deopur.
Dist. Dhule.

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CRIMINAL WRIT PETITION NO.1057 OF 2015

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11

....PETITIONER.

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Versus
Hilas S/o Bhata Mahajan
Age. 63 years, Occ. Pensioner,
R/o 74, Ramkrushna Nagar,
Nakane Road, Deopur,
Tq. and District. Dhule.

2}

Rajendra Anandrao Shirsath,

Age. 52 years, Occ. Service
Depur Police Station, Dist. Dhule.

ba
y

1}

Khushal Yadav Shivade,

Age. 60 years, Occ. Service,
Police Head Constable, Deopur
Police Station, District Dhule.

4}

Kautik Manga Wagh

Age. 58 years, Occ. Service
Police Station Incharge Deopur,
Tq. and Dist. Dhule.

om

3}

5}

The State of Maharashtra,

(Copy to be served on Public
Prosecutor, High Court, Bombay,
Bench at Aurangabad).
...RESPONDENTS.
Mr.K.C. Sant Adv. For Petitioner.
[Link] Chatterji Adv. For Res. No.1.
Mr. M.M. Nerlikar APP for Res. No. 5.

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WITH

1}

Kishor Laxman Mali,

Age 39 Yeras, Occu. Agriculture,
R/o. Varwade, Taluka Shirpur,
District Dhule.
Ramdas Totaram Dorik,
Age 62 Years, ccu. Agriculture,
R/[Link], Taluka Shirpur,
District Dhule
Ashabai Sanjay Dorik,
Age Major, Occu. Household,
R/o Padlade, Taluka Shirpur,
District Dhule
Pandharinath Eknath Patil,
Age 40 years, Occu. Agriculture,
R/[Link], Taluka Shirpur,
District Dhule.

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2}

3}

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4}

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1}

2}

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CRIMINAL WRIT PETITION NO.1326 OF 2015

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12

....PETITIONERS.
Versus

The State of Maharashtra

Through its Police Inspector,
Shipur Police Station, Shirpur,
Taluka Shirpur, District Dhule.
Thakubai Narayan Dorik,
Age 30 Years, Occu. Household,
R/o. Balkuwa, Taluka Shirpur,
District Dhule.
...RESPONDENTS.
[Link] Adv. For Petitioners.
[Link] APP for Res. No.1.

=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=

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13

CORAM:[Link]&
[Link],JJ.

JUDGMENTRESERVEDON:19.10.2015
JUDGMENTPRONOUNCEDON:21.10.2015

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JUDGMENT([Link],J.):
1]

The question that falls for consideration before

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thisCourtisasunder:

Whether the order made by the

Magistrate u/s 156(3) of the Code of

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Criminal Procedure, 1973, directing

Policetomakeinvestigationwouldbe
an interlocutory order ? If no,

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whetherremedyofrevisionu/s397or

2]

Section 401 of the Code of Criminal

Procedure,1973,wouldlie?

The question has arisen for consideration as

challengetotheordermadebytheMagistrateu/s156(3)
of the Code of Criminal Procedure, 1973 (hereinafter
referredtoasthe'Code'forbrevity),hasbeenraised
inthesematterseitherbywayofCriminalWritPetitions

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underArticles226and227oftheConstitutionofIndia

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oru/s482oftheCodewiththesubmissionthatthereis
noremedyoffilingrevisioneitherbeforetheSessions

CourtorthisCourtsincetheorderu/s156(3)wouldbe
aninterlocutoryorder.

The learned counsel for the applicants /

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3]

petitioners relied on the decision in the case of

[Link] Mukundrao Kalyankar v. State of Maharashtra

(2015ALLMR(Cri)2484) anditissubmittedthatitis

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held by the learned Single Judge of this Court in

paragraphnos.4and5ofthesaiddecisionthatrevision
challenging the order u/s 156(3) of the Code is not

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[Link]
nos.4 and 5 of the said judgment and we find that the
reasonassignedisthatsuchanorderu/s156(3)ofthe

Codewasnotanorderissuingprocessbutonlyanorder
[Link]
reason given for holding that the revision was not
maintainable.

4]

Section156inentiretyreadsthus:

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156. Police officer's power to investigate

(1)

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cognizablecase:

Any officer in charge of a police station

may, without the order of a Magistrate,

investigate any cognizable case which a Court
having jurisdiction over the local area within
the limits of such station would have power to

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inquire into or try under the provisions of

ChapterXIII.

No proceeding of a police officer in any

(2)

such case shall at any stage be called in

question on the ground that the case was one

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whichsuchofficerwasnotempoweredunderthis
sectiontoinvestigate.

(3) Any Magistrate empowered under section 190

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may order such an investigation as above

5]

mentioned.

Section 202 Subsection (1) of the Code reads

thus:
[Link]:
(1)

Any Magistrate, on receipt of a complaint

ofanoffenceofwhichheisauthorisedtotake
cognizance or which has been made over to him
under section 192, may, if he thinks fit,

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16

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postpone the issue of process against the

accused,andeitherinquireintothecasehimself

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ordirectaninvestigationtobemadebyapolice
officerorbysuchotherpersonashethinksfit,
forthepurposeofdecidingwhetherornotthere
issufficientgroundforproceeding:

Provided that no such direction for

investigationshallbemade,

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(a)whereitappearstotheMagistratethat
the offence complained of is triable
exclusivelybytheCourtofSession;or

(b)wherethecomplainthasnotbeenmadeby
a Court, unless the complainant and the
witnesses present (if any) have been

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examinedonoathundersection200.

(emphasissupplied)

Section156(3)oftheCodeisinChapterXIIwhile

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6]

Section200,includingSection202,fallsinChapterXV.

7]

Inthecaseof DevarapalliLakshminarayanaReddy&

[Link]&others(AIR1976SC1672),
a three Judges Bench of the Apex Court held thus in
paragraphno.17asunder:
17. Section 156(3) occurs in Chapter XII,
underthecaption:"InformationtothePoliceand
their powers to investigate"; while Section 202

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17

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is in Chapter XV which bears the heading "Of

complaints to Magistrates". The power It order

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police investigation under Section 156(3) is

differentfromthepowertodirectinvestigation
conferred by Section 202(1). The two operate in
distinct spheres at different stages. The first
is exercisable at the precognizance stage, the
second at the postcognizance stage when the

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[Link]
say in the case of a complaint regarding the
commission of a cognizable offence, the power

under Section 156(3) can be invoked by the

Magistrate before he takes cognizance of the
offence under Section 190(1)(a). But if he once

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takes such cognizance and embarks upon the

procedure embodied in Chapter XV, he is not
competent to switch back to the precognizance

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stage and avail of Section 156(3). It may be

noted further that an order made under sub
section(3)ofSection156,isinthenatureofa
peremptory reminder or intimation to the police
toexercisetheirplenarypowersofinvestigation
under Section 156(1). Such an investigation
embraces the entire continuous process which
begins with the collection of evidence under
Section156andendswithareportorchargesheet
underSection173.OntheotherhandSection202
comesinatastagewhensomeevidencehasbeen
collectedbytheMagistrateinproceedingsunder
Chapter XV, but the same is deemed insufficient

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18

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to take a decision as to the next step in the

prescribed procedure. In such a situation, the

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Magistrate is empowered under Section 202 to

direct within the limits circumscribed by that

section, an investigation "for the purpose of
decidingwhetherornothereissufficientground
for proceeding". Thus the object of an
investigation under Section 202 is not to

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initiate a fresh case on police report but to

assist the Magistrate in completing proceedings

alreadyinstituteduponacomplaintbeforehim.

8]

The Supreme Court then further clarified the

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position about the role of the Police Officer upon

passingoftheorderu/s156(3)oftheCodeinparagraph
nos.8, 9 and 10 of the decision in the case of Suresh

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[Link].P.&another (2001)2SCC628,

asunder:
8.

The investigation referred to therein is

the same investigation the various steps to be

adoptedforithavebeenelaboratedinChapterXII
of the Code. Such investigation would start with
making the entry in a book to be kept by the
officerincharge of a police station, of the
substance of the information relating to the
commission of a cognizable offence. The
investigation started thereafter can end up only

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19

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withthereportfiledbythepoliceasindicated
in Section 173 of the Code. The investigation

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contemplated in that Chapter can be commenced by

thepoliceevenwithouttheorderofaMagistrate.
But that does not mean that when a Magistrate
orders an investigation under Section 156(3) it
would be a different kind of investigation. Such
investigation must also end up only with the

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report contemplated in Section 173 of the Code.

Butthesignificantpointtobenoticedis,whena
MagistrateordersinvestigationunderChapterXII

he does so before he takes cognizance of the

offence.
9.

But a Magistrate need not order any such

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investigationifheproposestotakecognizanceof
the offence. Once he takes cognizance of the
offence he has to follow the procedure envisaged

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in Chapter XV of the Code. A reading of Section

202(1) of the Code would convince that the
investigationreferredtothereinisofalimited
nature. The Magistrate can direct such an
investigation to be made either by a police
[Link]
is only for helping the Magistrate to decide
whetherornotthereissufficientgroundforhim
[Link]
culminatingwordsinSection202(1)[Link]
aninvestigationtobemadebyapoliceofficeror
by such other persons as he thinks fit, for the

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purpose of deciding whether or not there is

[Link]

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he has already taken cognizance of the offence

disclosedinthecomplaint,andthedomainofthe
casewouldthereaftervestwithhim.
10.

The position is thus clear. Any Judicial

Magistrate, before taking cognizance of the

ig
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offence, can order investigation under Section

156(3) [Link] hedoes so,heis notto
examinethecomplainantonoathbecausehewasnot
[Link]

purpose of enabling the police to start

investigation it is open to the Magistrate to
direct the police to register an FIR. There is

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nothing illegal in doing so. After all

registration of an FIR involves only the process
of entering the substance of the information

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relating to the commission of the cognizable

offenceinabookkeptbytheofficerincharge
ofthepolicestationasindicatedinSection154
[Link]
somanywordswhiledirectinginvestigationunder
Section156(3)oftheCodethatanFIRshouldbe
registered, it is the duty of the officerin
chargeofthepolicestationtoregistertheFIR
regardingthecognizableoffencedisclosedbythe
complaint because that police officer could take
further steps contemplated in Chapter XII of the
Codeonlythereafter.

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21

From the two decisions quoted above, it is clear

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9]

thataftermakingoftheorderu/s156(3)oftheCode,it
is the duty of the officerincharge of the Police
Station to register FIR regarding cognizable offence
disclosed by the complaint and then to proceed to make

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investigation, which would end up only with the report

contemplated in Section 173 of the Code. It is

noteworthy that the Magistrate, after having made an

orderu/s156(3)oftheCodedoesnothaveanycontrolon

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y

the manner of investigation, making of arrest of the

accused or not etc. However, the investigation after
completionwouldenduponlywiththereportcontemplated

om

in Section 173 of the Code and it is on that report

thereafter,theprocedurecontemplatedbySection173of
theCodeorratherthepoweroftheMagistratewouldcome

into play. In other words, the order directing

investigation made by the Magistrate in the proceeding
u/s 156(3) of the Code would be final insofar as the
[Link]
adistinctioninrelationtothepoweroftheMagistrate
u/s202(1)oftheCodenamelytodirectaninvestigation

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tobemadebyaPoliceOfficerorbysuchotherperson,

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isonlyforhelpingtheMagistratetodecidewhetheror

not there is sufficient ground for him to proceed

further. Therefore,suchadirectionforinvestigation
contemplatedbySection202(1)oftheCodeshouldnotbe
confusedwiththedirectiontoinvestigateu/s156(3)of

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the Code and the same is independent having no

relationshipwiththeorderof investigation u/s156(3)

[Link]
Laxminarayan Vishwanath Arya v. State of Maharashtra &

ba
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others(2007(5)Mh.L.J.,7)onthebasisofthedecision
in the case of M.C. Abraham & others v. State of
Maharashtra & others (2003 Bom.C.R. (Cri), 650 (SC)

om

statedthusinparagraphno.21asunder:
21. The provisions of Section 41 of the
Criminal Procedure Code, 1973, hereinafter
referredtoas"theCode",providesforarrest
by a Police Officer without an order from a
Magistrate and without a warrant. A distinct
and different power under Section 44 of the
Code empowers the Magistrate to arrest or
[Link]

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Section 44 of the Code, that power is vested

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intheCourtoftheMagistratewhenanoffence
is committed in his presence. If the
Legislature has taken care of providing such
specific power under Section 44 of the Code,
thentherecouldbenoreasonforsuchapower

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h

not to be specified under the provisions of

Chapter XII of the Code. In terms of Section

41, a police officer may arrest a person

withoutawarrantororderfromtheMagistrate

ba
y

foranyoralloftheconditionsspecifiedin
that provision. Language of this provision
clearlysuggestedthat thePoliceOfficercan

om

arrest a person without an order from the

Magistrate. Thus, there appears to be no
reason why on the strength of Section 156(3)
of the Code, any restriction should be read
into the powers specifically granted by the
legislaturetothe PoliceOfficer. Ofcourse,
freedom of investigation is the essence of
theseprovisionsbutinordertosuppressthe
mischief it is sufficiently indicated under

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different provisions of the Code that the

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arrestingofficershouldexercisehispoweror
discretion judiciously and should be free of
motive. Some kind of inbuilt safeguard is
available to the accused in the cases where
the Magistrate directs investigation under

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Section156(3)oftheCodebytakingrecourse
to the provisions of Section 438 of the Code

by approaching the Court of Session or the

High Court for such relief. Thus, during the

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courseofinvestigationofacriminalcase,an
accused is not remediless and that would

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furtherbuttresstheaboveviewtakenbyus.

TheFullBenchalsostatedthusinparagraphnos.12

and13asfollows:
12. Another aspect is the case would be
dependentontheconstructionoflanguageunder
Section 156(3) of the Code. Though this
provision does empower the Magistrate to order
aninvestigation, theLegislatureinitswisdom
hadextendednofurtherpowertotheMagistrate
to control or intercheck or stop or give
direction to the mode of investigation. The

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scheme of the investigation thus postulate

investigation uncontrolled by the Magistrate.

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This was also the view taken by the Supreme

Courtin [Link]
Ors., 1970 (1) SCC 653 and State of Bihar v.
[Link].,1980(1)SCC534.
[Link]

ig
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fordecadesnowonthisaspectofinvestigation
[Link]
onthemodeandcontrolofinvestigationbythe
investigating agency. These precepts have been

relegatedwithvariance.

Thelearnedcounselforthepartieshavecited

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10]

before us decision of the Full Bench of Allahabad High

Court in the case of Father Thomas v. State of U.P. &

om

anotherreportedat2011Cri.L.J.,[Link]
thesaiddecisionandwethinkthatthesaiddecisionis

clearlydistinguishablesincetheFullBenchofAllahabad
HighCourtdidnotadverttothefactofterminationof
theproceedingsu/s156(3)oftheCodeafterpassingof
theorderbytheMagistratethereunderandthusthesaid
proceedingendingintofinalorder.

11] It is thus clear from the above that the

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investigation pursuant to the order u/s 156(3) of the

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Code is not controlled by the Magistrate and that was

whatwasheldbytheSupremeCourtinthecaseofS.N.

[Link].J.A.C.
SaldanhaandOrs.,asstatedintheFullBenchjudgment.
Torepeat,aftermakingoforderu/s156(3)oftheCode,

ig
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the Magistrate has further nothing to do and the

proceeding u/s 156(3) of the Code gets terminated.

NothingremainspendingbeforetheMagistrateaftersuch
order is made. Thus, despite termination of the

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proceedingu/s156(3)oftheCodeofCriminalProcedure,
1973 and in the light of the principle 'ubi jus ibi
remedium',thepetitioners/applicantscannotbedenied

om

thestatutoryremedyofrevision.

12]

Learned counsel have further cited decision of

theSupremeCourtinDharmeshbhaiVasudevbhai&othersv.
StateofGujarat&others reportedat (2009)6SCC576.
We quote paragraph nos.6 to 8 from this decision as
under:

6. It is well settled that any person may set

thecriminallawinmotionsubjectofcourseto

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the statutory interdicts. When an offence is

committed,afirstinformationreportcanbelodged

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underSection154of the Codeof CriminalProcedure

(for short, `the Code'). A complaint petition may
also be filed in terms of Section 200 thereof.
However,intheeventforsomereasonsortheother,
thefirstinformationreportisnotrecordedinterms
of subsection (1) of Section 156 of the Code, the

ig
h

magistrate is empowered under subsection (3) of

Section 156 thereof to order an investigation into
theallegationscontainedinthecomplaintpetition.
Thus,powertodirectinvestigationmayariseintwo

different situations (1) when a first information

report is refused to be lodged; or (2) when the
statutory power of investigation for some reason or

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theotherisnotconducted.
7.

When an orderis passed undersubsection(3)

ofSection156oftheCode,aninvestigationmustbe
carried out. Only when the investigating officer

om

arrivesatafindingthattheallegedoffencehasnot
beencommittedbytheaccused,hemaysubmitafinal
form;Ontheotherhand,uponinvestigationifitis
found that a prima facie case has been madeout, a
chargesheetmustbefiled.
8. Interference in the exercise of the statutory
power of investigation by the Police by the
Magistratefarlessdirectionforwithdrawalofany
investigation which is sought to be carried out is
notenvisagedundertheCodeofCriminalProcedure.
The Magistrate's power in this regard is limited.
Evenotherwise,hedoesnothaveanyinherentpower.

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Ordinarily,[Link]

aspect of the matter has been considered by this

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Court in S.N. Sharma v. Bipen Kumar Tiwari & Ors.

[(1970)1SCC653],whereinthelawhasbeenstated
asunder:

"[Link]"ifhe
thinks fit", the second alternative could
have been held to be independent of the

ig
h

first; but the use of this expression, in

our opinion, makes it plain that the power
conferred by the second clause of this
sectionisonlyanalternativetothepower

given by the first clause and can,

therefore,beexercisedonlyinthosecases

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y

inwhichthefirstclauseisapplicable.
[Link],even
insubsection(3)ofSection156,theonly
powergiventotheMagistrate,whocantake

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cognizanceofanoffenceunderSection190,
is to order an investigation; there is no
mention of any power to stop an
investigation by the police. The scheme of
these sections, thus, clearly is that the
power of the police to investigate any
cognizable offence is uncontrolled by the
Magistrate, and it is only in cases where
the police decide not to investigate the
case that the Magistrate can intervene and
either direct an investigation, or, in the
alternative, himself proceed or depute a
Magistratesubordinatetohimtoproceedto

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enquire into the case. The power of the

police to investigate has been made
Magistrate."

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independent of any control by the

13] We thus find from the perusal of the scheme

ig
h

[Link]
andinthe light ofabovedecisionsthat theorderu/s
156(3) of the Code must be held to be not an

interlocutory order, but an order in the nature of a

final order. In the case of B.S. Khatri v. State of

ba
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Maharashtra&another(2004(1)Mh.L.J.,747),aDivision
BenchofthisCourtheldthusinparagraphnos.13,17and
19andextractedportionfromparagraphno.20asunder:

om

[Link]
is an order under Section 156(3) of the Code
requiring investigation by a particular wing of
thepoliceoftheStateofMaharashtraispassed
and it is at this stage the petitioners have
moved this court for exercise of its extra
ordinary jurisdiction under Article 226.
Factually an order under Section 156(3) of the
Code can be revised by a Sessions Judge or by
thiscourtunderSection397readwith401ofthe
Code. Even for that purpose therefore alternate
remedy is available to the petitioners. Apart

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fromthatmereorderdirectinginvestigationdoes
notcauseanyinjuryofirreparablenature,which

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[Link]
that has been ordered is investigation into the
complaint.
17.

The stage of cognizance would arise after

the investigation report is filed and bar

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h

provided by Section 195 of the Code regarding

taking of cognizance would be applicable
[Link]
case.

thesedecisionsastheyareonthemeritsofthe

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19. TheSupremeCourthasobservedinthecase
of Rashmi Kumar (Smt.) v. Mahesh Kumar Bhada,
(1997) 2 SCC 397 that the writ jurisdiction
should be sparingly used. We would like to note

om

verbatimwhattheSupremeCourthastosay:
"Itiswellsettledlegalpositionthatthe
High Court should sparingly and cautiously
exercisethepowerunderSection482ofthe
Code to prevent miscarriage of justice. In
[Link](K.
[Link],JJ.)composing
the Bench and in State of U.P. v. O.P.
Sharma a threeJudge Bench of this Court,
reviewedtheentirecaselawontheexercise
ofpowerbytheHighCourtunderSection482
of the Code to quash the complaint or the
chargesheetorthefirstinformationreport
andheldthattheHighCourtwouldbeloath
and circumspect to exercise its
extraordinarypowerunderSection482ofthe

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31

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h

C
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Code or under Article 226 of the

Constitution. The Court would consider
whether the exercise of the power would
advance the cause of justice or it would
tantamount to abuse of the process of the
[Link]
be regulated by proceeding against the
offender as it is an offence against the
[Link]
should always be kept in mind before
embarkingupontheexerciseoftheinherent
powervestedintheCourt."

It will be seen therefore that the writ

jurisdiction has to be exercised very

20.

circumspectively.
......

..

..

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Itwillbeseenthatwhatisimpugnedbeforeus
is the order passed under Section 156(3) of the
Code which directs investigation into the
complaint by a particular wing of the police.

om

What is going to be the outcome of that

investigation is not known. Everything that can
happen thereafter can be scrutinized and
rescrutinized by judicial authorities mentioned
intheCodeandthereisthereforenoquestionof
miscarriage of justice being caused by not
quashingofthecomplaintandorder.

Finallywequoteparagraphno.31asunder:
31. We have also noted above that several
efficacious alternate statutory remedies under

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theCriminalProcedureCodeareavailabletothe
petitionerstochallengetheorderunderSection

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156(3). Without availing them the petitioners

haverushedbeforethiscourt,claimingexercise
ofitsextraordinaryjurisdictionunderArticle
[Link], there isnoneed
toexercisethisjurisdictiontoquashmerelythe
complaint and order under Section 156, Criminal

ig
h

Procedure Code requiring investigation into

complaint by the police. The petitions are

thereforeliabletobedismissed.

14] Insofarasthequestionframedbyusisconcerned,

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we find that there is a passing reference in paragraph

no.31 made by the Division Bench about availability of
severalefficaciousalternativestatutoryremediesunder

om

the Criminal Procedure Code to challenge the order u/s

156(3).Wethinkthoughitisobiterdicta,nevertheless

thesameisbindingonusaswerespectivelyagreewith
thesaidview,fortheabovereasonsthattheorderu/s
156(3)oftheCodenotbeinganinterlocutoryorder,but
being a final order in a proceeding u/s 156(3) of the
Code would certainly be revisable under the revisional
powers of the Sessions Court or the High Court. The
DivisionBenchinthecaseof [Link]

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Maharashtra&another(supra),however,clearlyheldthat

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theexerciseofextraordinaryjurisdictionunderArticle

226 of the Constitution should not be made for

consideringthechallengetoorderu/s156(3)oftheCode
with which again we respectfully agree. We, however,
statethatthebartoexerciseextraordinaryjurisdiction

ig
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underArticle226oftheConstitutionistheoneofself
imposed rule. We, however, hold that the order u/s

156(3) of the Code not being an interlocutory order,

would obviously be revisable. We thus hold that the

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orderu/s156(3)oftheCodeofCriminalProcedure,1973,
is not an interlocutory order, but is a final order
terminating the proceeding u/s 156(3) of the Code and

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that the revision u/s 397 or Section 401 of the Code

wouldlie.

15]

Thelearnedcounselforthepartieshavecited

severaldecisionsbeforethisCourt,butthenwedonot
thinkthatitisnecessarytorefertotheminthelight
ofthediscussionmadebyusabove.

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Thelearnedcounselfortheappearingpartiesin

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16]

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allthesematterssubmittedthatthepowerofthisCourt
u/s482oftheCodeoughttobeexercisedbythisCourt

sincetheproceedingsimpugnedamounttoabuseofprocess
oftheCriminalCourt. Itisinthiscontext,wehave
heardthelearnedcounselforthepartiesandalsoseen

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thepleadingsintheseapplications/[Link]
carefully perused the pleadings and heard the learned

counsel with respect to the documents on record and we

find that the jurisdiction u/s 482 of the Code is not

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[Link]
is a wellsettledlegalposition,aspointed outbyus
earlier, that the power u/s 482 of the Code is to be

om

[Link]
instant case in all these cases show several disputed
questionsandthefacetswhichrequiredueinvestigation

inthelightofthedocumentsandtheothermaterialon
record. Wehave cometo theconclusionthattheseare
notthecasesfitforexercisingtheinherentpoweru/s
482 of the Code and, therefore, we think that the
applicants / petitioners can very well address the
revisionalCourtonfactsaswellasonthequestionsof

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law with reference to documents etc. even for seeking

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intervention of the revisional Court for quashing the

[Link],weholdthatinnoneof
thesecases,theinherentpowerofthisCourtdeservesto
beexercisedand,therefore,keepingallthepointsopen

and in view of the fact that we have held that the

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revision would lie, we decline the request of the

applicants/petitionerstoexerciseourpowereitheru/s

482oftheCodeorunderArticle226oftheConstitution
[Link],wemakethefollowingorder.

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ORDER
a]

Criminal Writ Petitions as well as the Criminal

Applications are all disposed of holding that the

om

applicants / petitioners in these applications / writ

petitions are entitled to file revisions before the
revisional Court to set up challenge in the revisions

before the revisional Court. All the points raised in

theseapplicatioins/writpetitionsonfactsaswellas
inlawarekeptopen.

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36

The revisional Court shall consider the issue of

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b]

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limitation in the light of Section 14 of the Indian

Limitation Act sympathetically in the matter of
condonationofdelayinfilingtherevisions.
c]

The applications / writ petitions in which interim

orders have been made by this Court shall continue to

d]

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h

operateforanotherfourweeksfromtoday.
There shall be no order as to costs in these

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y

matters.

om

([Link],J.)([Link],J.)

ndk/[Link]

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