Jurisdictional Delineation: Power Of Revisional Court Vis-À-Vis Quashing Of FIR

Statutory Framework

Section 154(1) read with Section 156(1) Cr.P.C. provides an inference that the Police have the statutory duty to register an FIR and conduct an investigation pursuant thereto upon receiving information as to the commission of a cognizable offense. In line, Section 156(3) Cr.P.C. confers a supervisory power upon the magistrate to compel the police to perform its aforesaid duty. Thus, when the police fail to perform the aforesaid statutory mandate despite the commission of a cognizable offense, the magistrate can pass an order directing the police to perform the same whenever a complaint is made before her. An order passed by the magistrate under Section 156(3) Cr.P.C. is an intimation to the police to exercise its plenary powers of investigation under Section 156(1) Cr.P.C.

Revisability of an order of magistrate under Section 156(3) Cr.P.C.

In the backdrop of the above discussion, the moot question that arises here is whether the above order of magistrate under Section 156(3) Cr.P.C. is amenable to revision. As per Section 397 Cr.P.C., the High Court and the Court of Session have the concurrent jurisdiction to exercise the powers of revision. However, the propriety demands that the revisional powers of the Court of Session shall be invoked first instead of approaching the High Court directly. Section 397 (1) Cr.P.C. categorically provides that these courts may call for the records of any subordinate criminal court under their jurisdiction to satisfy itself regarding the legality, propriety, and correctness of any order or sentence passed by such subordinate criminal court. However, as per Section 397(2) Cr. P.C., the power of revision cannot be exercised by the revisional courts in relation to any 'interlocutory order' passed by the subordinate criminal court.

An interlocutory order refers to a temporary or interim order that does not substantially affect the rights of the parties, as held by the Apex Court in Amar Nath v. State of Haryana. Thus, any order that conclusively determines the rights and liabilities of the parties does not fall under the ambit of an interlocutory order. Another prominent test to determine the interlocutory nature of an order for the purpose of Section 397(2) Cr.P.C. has been laid down by the Supreme Court in K.K. Patel v. State of Gujarat. It provides that an order passed by a subordinate criminal court is not interlocutory if the objections raised by a party against such order are upheld by the revisional court, it would result in the termination of entire proceedings before the subordinate criminal court.

In light of the above judicial precedents, an order passed by a magistrate under Section 156(3) Cr.P.C. directing the police to register an FIR and conduct an investigation does not fall into the category of an interlocutory order. Firstly, such an order by the magistrate substantially touches upon the fundamental rights and freedom of the accused persons. On the basis of such an order, the accused persons can be summoned for investigation and can even be arrested without warrants by the police. Secondly, if the objections raised by an accused person against such order are upheld by the court of revision then it would result in the termination of entire proceedings before the magistrate. Therefore, the order of the magistrate under Section 156(3) Cr.P.C. is amenable to revision under Section 397 Cr.P.C. for not being an interlocutory order.

Power of revisional court to quash an FIR

Now, the substantial question of law that arises here is whether the revisional court under Section 397 Cr.P.C. can quash an FIR registered pursuant to an order of a magistrate directing investigation under Section 156(3) Cr.P.C. The foremost response to this question is that the power to quash an FIR is an inherent power of the High Court as per Section 482 Cr.P.C. and the same cannot be exercised by a court sitting in the revisional jurisdiction as it would amount to violence to the scheme envisaged under the Code of Criminal Procedure, 1973.

Besides, from the pragmatic perspective, another aspect that requires consideration here is that conferring the power to quash an FIR upon the revisional court may lead to absurd consequences. For instance, pursuant to an order of a magistrate under Section 156(3) Cr.P.C., one accused may approach the High Court to quash the FIR, and a co-accused may approach the Court of Session by invoking its revisional jurisdiction to get the FIR quashed. In such a scenario, there may be two conflicting orders of these courts leading to absurd consequences.

Further, as discussed before, it is the statutory duty of the police to register an FIR and conduct an investigation whenever the information of the commission of a cognizable offense is received by them. The magistrate, by way of its order under Section 156(3) Cr.P.C. simply reminds the police to perform its statutory duty. It can never be inferred that the power of police to register an FIR and investigate a cognizable offense flows from the order passed by the magistrate under Section 156(3) Cr.P.C. Thus, such a nature of the order of magistrate under Section 156(3) Cr.P.C. leads to the inference that the revisional court cannot interdict the police to perform its statutory duty while assailing the order of magistrate. Once an FIR is registered upon the order of the magistrate under Section 156(3) Cr.P.C., it can only be quashed by the High Court under Section 482 Cr.P.C.

It is indeed possible that the order of a magistrate under Section 156(3) Cr.P.C. may suffer from patent illegalities such as the order being passed on a complaint not supported by an affidavit or the order being passed on a complaint against a public servant without prior sanction of the government. In such cases, the revisional court would be well within its jurisdiction to assail such an order but cannot quash any FIR already registered pursuant thereto. To get the FIR quashed, an aggrieved person armed with the order of a revisional court can approach the jurisdictional High Court.

The Bombay High Court in Arun P. Gidh v. Chandra Prakash Singh and Ors., while discussing the above legal propositions, provided for the following different pragmatic approaches to be adopted by the revisional court in two different situations i.e. where the FIR has been registered and where the FIR has not been registered pursuant to an order of the magistrate under Section 156(3) Cr.P.C.:

(a) In the case where the FIR is yet not registered, the revisional court through an interim order would be competent to stay the effect and operation of the impugned order of the magistrate and the police cannot proceed to register an FIR and conduct investigation in the interregnum.

(b) In the case where the FIR has already been registered and the impugned order of the magistrate suffers from patent illegality, then the revisional court can stay the further proceedings and the investigation into the FIR after recording the reasons for doing so.

(c) In the case where the investigation pursuant to an FIR culminates into the filing of a chargesheet or/and cognizance by the competent court, then any final or interim order of the revisional court assailing the impugned order of the magistrate under Section 156(3) Cr.P.C. would have no effect to terminate the resultant prosecution.

To conclude, the revisional courts do not have the power to quash an FIR registered pursuant to an order of magistrate under Section 156(3) Cr.P.C. The power of a revisional court lies to the extent of assailing the impugned order of the magistrate. Thus, if the initial order of the magistrate under Section 156(3) Cr.P.C. suffers from any illegalities, everything done pursuant to such order cannot be set at naught by the revisional court.

The authors are Advocates practicing at Rajasthan High Court, Jaipur, Rajasthan. Views are personal.