Chandra Dhari Singh, J. - The instant criminal revision under Section 397/ 401 of Cr.P.C. has been preferred against the judgment and order dated 28.01.2020 passed in Criminal Misc. Case No.94 of 2020 (Raj Kishore v. Shalini Sahai and another), by which the learned Special Judge, SC/ ST Act, Lucknow has allowed the application moved by opposite party no.2 under Section 156(3) of Cr.P.C. directing the Station House Officer, Gomti Nagar to lodged an FIR and submit report.

2. Submission of learned Counsel for revisionists is that the opposite party no.2 Raj Kishore had moved an application under Section 156(3) of Cr.P.C. against the revisionists on 18.01.2020, which has been allowed by the impugned order. Learned Counsel has further submitted that the impugned order is arbitrary and contrary to the law laid down by the Apex Court.

3. Learned Counsel for revisionists has further submitted that earlier on 25.11.2019, the opposite party no.2 had lodged an FIR against the revisionist Anit Kumar and his wife Sadhna Srivastava have in Case Crime No.1412 of 2019, under Sections 506, 504, 406, 420 IPC at Police Station Gomti Nagar, District Lucknow. The revisionist no.1 being a police officer posted at Police Station Gomti Nagar, District Lucknow was appointed to investigate the matter. During investigation, the revisionist no.1 called both the parties to compromise the dispute regarding construction of house. Learned Counsel has again submitted that the application under Section 156(3) of Cr.P.C. has been moved only in order to put pressure upon the revisionists.

4. Learned Counsel for revisionists has further submitted that while discharging official duty, the revisionist no.1 had never used any word relating to caste against the opposite party no.2 and, therefore, the averments made in the application under Section 156(3) of Cr.P.C. is totally false and fabricated. Learned Counsel again submitted that the impugned order is contrary to law as no first information report can be lodged against any public servant without obtaining sanction from the competent authority for initiation of criminal proceedings. The revisionist no.1 is a public servant and, therefore, she is entitled for protection under Section 197 of Cr.P.C. She cannot be made accused without any sanction by the State Government. Therefore, in these background, the impugned order is liable to be quashed.

5. In support of his arguments, learned Counsel for revisionists has placed reliance in the case of Anil Kumar and others v. M.K. Aiyappa and another; (2013) 10 SCC 705 [LQ/SC/2013/1118] .

6. Per contra, learned A.G.A. and learned Counsel appearing for opposite party no.2 have vehemently opposed the submissions advanced by learned Counsel for revisionists.

7. Learned Counsel appearing on behalf of opposite party no.2 has submitted that the opposite party no.2 is a retired Government Employee and the revisionist no.2 is a contractor, builder and property dealer. The revisionist no.2 entered into an agreement with opposite party no.2 for construction of his house and paid Rs.50 lakhs but deliberately, the revisionist no.2 left the work incomplete. The opposite party no.2 made several request but no heed has been paid. Thereafter having left with no option, the opposite party no.2 moved an application under Section 156(3) of Cr.P.C. and the learned Court below while passing the impugned order on the said application has not committed any error. Learned Counsel has further submitted that the ratio laid down in the case of Anil Kumar (Supra) is not applicable to the instant case because the ration of the said case is applicable on the cases fall under the Prevention of Corruption Act in which there is specific provision under Section 19 but in the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, there is no such provision like Section 19 of the Prevention of Corruption Act.

8. Learned Counsel for opposite party no.2 has further submitted that the Full Bench of this Court in Father Thomas v. State of U.P. and another; 2011 (1) JIC 533 (ALL) (FB) has held that criminal revision against the order passed under Section 156(3) of Cr.P.C. is not maintainable as the order passed under Section 156(3) is an interlocutory order. Learned Counsel has submitted that under the provisions of Section 19 of the Prevention of Corruption Act, 1988, previous sanction is necessary for taking cognizance of an offence committed by a public servant but for lodging of an FIR, previous sanction is not necessary. Therefore, Section 19 of the Prevention of Corruption Act is not applicable in this case and accordingly, the instant criminal revision is liable to be dismissed.

9. I have heard learned Counsel for the parties and perused the material available on record.

10. In the instant case, the opposite party no.2 had moved an application under Section 156(3) of Cr.P.C. before the learned Magistrate with the allegation that the opposite party no.2 and the revisionist no.2 entered into an agreement for construction of house but the revisionist no.2, who is the contractor/ builder denied to complete the construction work after taking Rs.5,00,000/- (fifty lakhs) from the applicant. An FIR against the revisionist no.2 and his wife was lodged by the opposite party no.2 as Case Crime No.1412 of 2009. The revisionist no.1 is the Investigating Officer of this case. The revisionist no.1 called for both the parties and put pressure on the opposite party no.2 for compromise and on denial, used filthy language by making caste-based remark. The opposite party no.2 tried to lodge an FIR but when FIR has not been lodged, the opposite party no.2 moved the aforesaid application under Section 156(3) of Cr.P.C.

11. The main objection taken by learned Counsel for opposite party no.2 is that an accused has no locus standi before an order of summoning is passed and since an order directing investigation is interlocutory in nature, such an order is not subject to a revision in view of the statutory bar contained in Section 397(2) of Cr.P.C. The main issues before this Court to adjudicate are as follows:

(A) Whether the order of learned Magistrate made in exercise of powers under Section 156(3) of Cr.P.C. directing the police to register and investigate is open to revision at the instance of a person against whom neither cognizance has been taken nor any process is issued

(B) Whether an order made under Section 156(3) of Cr.P.C is an interlocutory order and remedy of revision against such order is barred under sub-section (2) of Section 397 of Cr.P.C.

12. Before examining any of the questions framed above, it would be necessary to reproduce the words of section 156 which falls in Chapter XII of Cr.P.C.:

156. Police officers powers to investigate cognizable cases.- (1) 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 inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered under Section 190 may order such an investigation as above mentioned.

Issue No.(A)

13. As pointed out in Suresh Chand Jain v. State of M.P. and others; AIR 2001 SC 571 [LQ/SC/2001/93] that there is a difference in the position of a prospective accused against whom an order is made under section 156(3) of Cr.P.C. before cognizance is taken by the Magistrate, and an accused against whom investigation has been directed under section 202(1) of Cr.P.C. Although the nature of both the investigations is the same, but the former investigation is carried out by the police, essentially under Chapter XII of the Code which deals with: Information to the Police and Their Powers to Investigate. The police officer-in-charge of the police station has the same powers for carrying out an investigation under section 156(1), without orders of the Magistrate as the Magistrate can direct under section 156 (3) of the Code. Section 154 (1) of the Code prescribes the steps to be taken on receipt of a report of a cognizable offence by such a police officer. 154(3) gives powers to the Superintendent to issue appropriate directions requiring a station officer to conduct investigation into a cognizable offence. This power is parallel to the power of the Magistrate to issue a similar direction to the Station officer under section 156(3) of the Code. The investigation culminates with the submission of the report by the police under section 173 of the Code. The post-cognizance investigation directed by the Magistrate under section 202(1) although it is of a limited nature at the stage of inquiry and is carried out mainly for helping the Magistrate decide whether or not there is sufficient ground for him to proceed further, but it is an investigation which is carried out on directions of the police after cognizance has been taken by the Magistrate on a complaint under sections 190(1)(a) and after examination of the complainant under section 200 of the Code.

14. In the case of Pratap v. State of U.P.; 1991 (28) ACC 422 , it has been observed that merely because process has been issued against a person, it cannot be said that a decision adversely affecting his rights has been taken, as he has merely been asked to face trial in a Court of law. Therefore no principle of natural justice is infringed if a Magistrate issues process against a person without first affording him an opportunity of hearing. The Code does not contemplate holding two trials, one before the issue of process and the other after the process is issued. The legislature has provided an elaborate procedure for hearing an accused after the trial begins in a Court of law.

15. The thrust of the argument was that if after cognizance when the Court decides to conduct an inquiry under section 200 or 202 Cr.P.C, no right of hearing, beyond the right of the accused to be present personally or through counsel is permitted, where would the question arise of the accused having a right to be heard when an order by the Magistrate only directing the police to investigate a cognizable offence in exercise of powers under section 156(3) Cr.P.C was passed at the pre-cognizance stage.

16. In Bhagwan Samardha Sreepada Vallabha Venkata Vishwandaha Maharaj v. State of A.P. and others; JT 1999 (4) SC 537 [LQ/SC/1999/604] , it has been held that even after submission of a final report, the police in exercise of powers under section 173 (8) is empowered to further investigate the matter. No obligation is cast at that stage also to hear the accused, as casting such an obligation would unnecessarily place a burden on the Courts to search for all the potential accused and to provide them with an opportunity of being heard before further investigation could be conducted, defeating its purpose.

17. In the case of C.B.I. and another v. Rajesh Gandhi and another; 1997 Cr.L.J 63 , it has been observed that the decision to investigate and the agency which should investigate the offence does not attract the principles of natural justice and the accused has no say in the matter as to who should investigate the offence he is charged with.

18. In Bhagwant Singh v. Commissioner of Police; 1985 (22) ACC 246 (SC) , it was held that after consideration of the report under section 173(2) of the Code, where the Magistrate decides not to take cognizance and to drop the proceedings or reaches a conclusion that there was no sufficient ground for proceeding against some of the persons mentioned in the FIR, the Magistrate must give notice to the informant and provide him with an opportunity to be heard at the time of consideration of the report. Here again no right of hearing has been conferred on an accused when the Magistrate decides to hear the informant on receipt of the report under section 173 (2) of the Code, when he is of the opinion that no ground exists for proceeding against the accused.

19. In the case of Abdul Aziz v. State of U.P.; 2009 Cri.L.J 1683 , the court has observed as under:

Thus at the stage of Section 156(3) Cr. P. C. any order made by the Magistrate does not adversely affect the right of any person, since he has got ample remedy to seek relief at the appropriate stage by raising his objections. It is incomprehensible that accused cannot challenge the registration of F.I.R. by the police directly, but can challenge the order made by the Magistrate for the registration of the same with the same consequences. The accused does not have any right to be heard before he is summoned by the Court under the Code of Criminal Procedure and that he has got no right to raise any objection till the stage of summoning and resultantly he cannot be conferred with a right to challenge the order passed prior to his summoning. Further, if the accused does not have a right to install the investigation, but for the limited grounds available to him under the law, it surpasses all suppositions to comprehend that he possesses a right to resist registration of F.I.R.

20. From a consideration of the aforesaid laws, it is apparent that even when a complaint is filed under section 190(1) (a) and the Court decides to take cognizance and to adopt the procedure provided for inquiry under section 200 and 202 Cr.P.C, the accused is only permitted to remain present during the proceedings, but not to intervene or to raise his defence, until the order issuing summons is passed. The right of hearing of a prospective accused at the pre-cognizance stage, when only a direction for investigation by the police is issued by the Magistrate under section 156(3) Cr.P.C., can only be placed at a lower pedestal. It is only during the course of trial that the accused has been conferred rights at different stages to raise his defence. As the authorities show, that in the absence of any statutory right of hearing to the prospective accused at the pre-cognizance stage, when the direction to investigate has only been issued by the Magistrate under section 156(3), the accused cannot be conferred with any right of hearing even under any principle of audi alteram partem.

21. This Court has also seen that during the stage of investigation the accused has no right of intervention as to the mode and manner of investigation and who should investigate.

22. Even after submission of a final report, either when the police decides to order further investigation under section 173(8) Cr.P.C, or before accepting or rejecting the report, only the informant is required to be heard. The accused is not entitled to be heard even at this stage. In this view it would be unrealistic to confer a right of hearing when only an innocuous direction for investigation is passed by the Magistrate in a case disclosing a cognizable offence., especially when the allied order regarding the decision of a police officer to investigate in exercise of powers under section 156(1) is not vulnerable to challenge in the criminal revision. Also when objections to maintainability of a case are raised on the ground of limitation under section 468 or under section 195 Cr.P.C, the appropriate stage for raising these objections is at the time of cognizance or at the time of framing of charges, and not when a Magistrate issues a direction for investigation under section 156(3) Cr.P.C.

23. In the light of the aforesaid discussion, it is abundantly clear that the prospective accused has no locus standi to challenge a direction for investigation of a cognizable case under Section 156(3) Cr.P.C before cognizance or issuance of process against the accused. The first issue is answered accordingly.

Issue No.(B)

24. Section 397 (2) of Cr.P.C. reads as follows:

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.

25. Only if cognizance is taken and process issued that the accused gets a right of hearing. Before that stage according to the learned Single Judge, any order, including an order under section 156(3) Cr.P.C, will be interlocutory in nature.

26. In the case of Madhu Limaye v. State of Maharashtra; 1978 (15) ACC 184 , no doubt lays down that orders, such as the order in that case issuing process against the accused could not be described as a final order, but it was also not an interlocutory order, which could have attracted the bar to the maintainability of the criminal revision in view of section 397 (2) of the Code, because if the plea of the accused was rejected on a point which when accepted could have concluded the particular proceedings. Rather according to the said decision it should be described as a type of intermediate order falling in the middle course. In Madhu Limayes case (Supra) an objection had been raised by the appellant that the cognizance taken by the Sessions Court without commitment of the case to it in exercise of powers under section 199(2) Cr.P.C, on a complaint under section 500 IPC by the Public Prosecutor based on the sanction by the State government under section 199(4) Cr.P.C was incompetent, as no complaint had been made by the aggrieved person Sri A.R. Antulay, the Chief Minister, and the alleged defamatory statements related to acts done in his personal capacity, and not in the discharge of his public duties. If this contention was accepted, it would have resulted in the order of cognizance passed by the Sessions Judge without the case being committed to him, being set aside. Hence this objection would go to the root of the matter, and could not be ignored only by describing the order as interlocutory in nature.

27. In the case of Amar Nath v. State of Maharashtra; AIR 1977 SC 2185 [LQ/SC/1977/232] , the Apex Court has held as under:

6. Let us now proceed to interpret the provisions of Section 397 against the historical background of these facts. Sub-section (2) of Section 397 of the 1973 Code may be extracted thus :

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.

The main question which falls for determination in this appeal is as to what is the connotation of the term interlocutory order as appearing in sub-section (2) of Section 397 which bars any revision of such an order by the High Court. The term interlocutory order is a term of well-known legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Websters New World Dictionary interlocutory has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. It seems to us that the term interlocutory order in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any 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 revison to the High 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. But orders which are matters of 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 the High Court.

28. In Amar Naths case (supra), the order summoning the appellants in a mechanical manner after the police had submitted a final report against them leading to their release by the Judicial Magistrate, and the revision against that order before the Additional Sessions Judge preferred by the complainant had also failed. Even the subsequent complaint by the complainant had been dismissed on merits. Against the latter dismissal of the complaint when the complainant preferred a revision, the Sessions Judge set aside the order of the Judicial Magistrate and ordered further inquiry, whereupon the Magistrate straightaway summoned the appellants for trial. This order which appeared to infringe substantial rights acquired by the appellants was considered an order of moment and not a mere interlocutory order, which would invite the bar to entertaining the revision under S. 397(2) of the Code.

29. An order under section 156(3) Cr.P.C. passed by the Magistrate directing the police officer to investigate a cognizable case on the other hand is no such order of moment, which impinges on any valuable rights of the party. Were any objection to the issuance of such a direction to be accepted (though it is difficult to visualize any objection which could result in the quashing of a simple direction for investigation), the proceedings would still not come to an end, as it would be open to the complainant informant to move an application under section 154(3) before the Superintendent of Police (S.P.) or a superior officer under section 36 of the Code. He could also file a complaint under section 190 read with section 200 of the Code. This is the basic difference from the situations mentioned in Madhu Limaye and in Amar Naths cases, where acceptance of the objections could result in the said accused being discharged or the summons set aside, and the proceedings terminated. Also the direction for investigation by the Magistrate is but an incidental step in aid of investigation and trial. It is thus similar to orders summoning witnesses, adjourning cases, orders granting bail, calling for reports and such other steps in aid of pending proceedings which have been described as purely interlocutory in nature in Amar Nath (supra).

30. As the direction for investigation passed by the Magistrate under section 156(3) is purely interlocutory in nature, and involves no substantial rights of the parties, we are of the view that the bar under section 397(2) Cr.P.C to the entertainment of a criminal revision can also not be circumvented by moving an application under section 482 Cr.P.C. As observed in State v. Navjot Sandhu, (2003) 6 SCC 641 [LQ/SC/2003/617] in paragraph 29:

29. Section 482 of the Criminal Procedure Code starts with the words Nothing in this Code. Thus the inherent jurisdiction of the High Court under Section 482 of the Criminal Procedure Code can be exercised even when there is a bar under Section 397 or some other provisions of the Criminal Procedure Code. However as is set out in Satya Narayan Sharma case [(2001) 8 SCC 607 [LQ/SC/2001/2175] : 2002 SCC (Cri) 39 [LQ/SC/2001/2175] ] this power cannot be exercised if there is a statutory bar in some other enactment. If the order assailed is purely of an interlocutory character, which could be corrected in exercise of revisional powers or appellate powers the High Court must refuse to exercise its inherent power. The inherent power is to be used only in cases where there is an abuse of the process of the court or where interference is absolutely necessary for securing the ends of justice. The inherent power must be exercised very sparingly as cases which require interference would be few and far between. The most common case where inherent jurisdiction is generally exercised is where criminal proceedings are required to be quashed because they are initiated illegally, vexatiously or without jurisdiction. Most of the cases set out hereinabove fall in this category. It must be remembered that the inherent power is not to be resorted to if there is a specific provision in the Code or any other enactment for redress of the grievance of the aggrieved party. This power should not be exercised against an express bar of law engrafted in any other provision of the Criminal Procedure Code. This power cannot be exercised as against an express bar in some other enactment.

31. However it is made clear that the initial order for investigation under section 156(3) is also not open to challenge in a writ petition, as it is now beyond the pale of controversy that the province of investigation by the police and the judiciary are not overlapping but complementary. As observed by the Privy Council in paragraph 37 in Emperor v. Khwaja Nazir Ahmad, AIR 1945 PC 18 [LQ/PC/1944/36] when considering the scope of the statutory powers of the police to investigate a cognizable case under sections 154 and 156 of the Code, that it would be an unfortunate result if the Courts in exercise of their inherent powers could interfere in this function of the police. The roles of the Court and police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function.

32. In view of above, the order of the learned Magistrate passed in exercise of powers under Section 156(3) of Cr.P.c. directing the police to register and investigate is not open to revision at the instance of a person against whom neither cognizance has been taken nor any process issued and an order made under Section 156(3) of Cr.P.C. is an interlocutory order and remedy of revision against such order is barred under sub-section (2) of Section 397.

33. Accordingly, the criminal revision is hereby dismissed.