Hon’ble Dr. D.Y. Chandrachud, C.J.—The reference to the Full Bench

The reference to the Full Bench has been occasioned upon two orders passed by learned Single Judges of this Court. By the first of those orders, the following question was referred for consideration:

“Whether an order made under Section 156 (3) of the Code of Criminal Procedure, 1973 (Code) is an interlocutory order and the remedy of a revision against such an order is barred under sub-section (2) of Section 397.”

Subsequently, a learned Single Judge of this Court, while noticing the above reference, referred two additional questions for consideration by a larger Bench:

“(1) Whether an order made under Section 156 (3) of the Code rejecting an application for a direction to the police to register and investigate, is revisable under Section 397; and

(2) If the answer to Question (1) is in the affirmative, then, whether in a revision filed against an order rejecting an application under Section 156 (3), the prospective accused is also a necessary party and is required to be heard before a final order is passed.”

2. The Full Bench decision in Father Thomas

Before we enter upon the issues which are raised in this reference, it would, at the outset, be necessary to traverse, for clarity of exposition, the ground which has been covered by a decision of a Full Bench of this Court in Father Thomas v. State of U.P., 2011(1) ADJ 333 (FB). In that case, a Single Judge of this Court was of the view that as the 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 the Code. Section 397 (2) provides that the power of revision which is conferred by sub-section (1) upon the High Court or a Sessions Judge to call for and examine the record of any proceeding before any inferior criminal Court for the purpose of satisfying itself of the correctness, legality or propriety of any finding, sentence or order and as to the regularity of any proceedings shall not be exercised in relation to any interlocutory order passed in any appeal, enquiry, trial or other proceeding. However, it had earlier been held in a decision of this Court in Ajai Malviya v. State of U.P., 2000 ACJ 2730, that since an order under Section 156 (3) is a judicial order, an FIR registered on its basis could not be challenged by a writ petition. Accepting that an order under Section 156 (3) is a judicial order, the learned Single Judge who made the reference in Father Thomas was of the view that since the order is nonetheless interlocutory in nature, it could not be challenged by a prospective accused who has no locus standi at the stage of investigation and, hence, a criminal revision is not maintainable for challenging such an order. The reference before the Full Bench in Father Thomas was of the following three questions:

A. Whether the order of the Magistrate made in exercise of powers under Section 156(3) CrPC 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 issued;

B. Whether an order made under Section 156(3) CrPC is an interlocutory order and remedy of revision against such order is barred under sub-section (2) of Section 397 of the Code of Criminal Procedure, 1973; and

C. Whether the view expressed by a Division Bench of this Court in the case of Ajay Malviya v. State of U.P. and others, 2000 (41) ACC 435, that as an order made under Section 156 (3) of the Code of Criminal Procedure is amenable to revision, no writ petition for quashing an FIR registered on the basis of the order will be maintainable, is correct.

The judgment of the Full Bench on each of these three questions which were referred, held thus:

(A) At the pre-cognizance stage when only a direction has been issued by the Magistrate under Section