Prospective accused cannot challenge an interlocutory order under Section 156(3) Cr.P.C. until cognizance is taken.

1. Heard Sri R.B.S. Rathaur, learned counsel for the petitioners, Sri Anurag Verma, learned Additional Government Advocate for opposite parties no. 1 and 2 and perused the record.

2. Facts, in brief, of the present case are that on 9.12.2015 an election for the post of Gram Pradhan in Gram Panchayat Rai Askaranpur, Block Babaganj, District Pratapgarh was held in which 'Bhabhi' of petitioner no.1, namely, Smt. Pushpa Singh contested for the said post . In the said matter certain controversy has taken place so opposite party no.3 moved an application under S.156(3) Cr.P.C. in the Court of Additional Chief Judicial Magistrate, Kunda, Pratapgarh, registered as Criminal Case no.6 of 2016 ( Ajai Pratap Singh Vs. Pappu and others), allowed by order dated 23.1.2016 under challenge in the present writ petition.

3. Sri Anuraj Verma , learned Additional Government Advocate appearing on behalf of opposite parties no.1 and 2 raised a preliminary objection that as in the present case by an order dated 23.1.2016 Additional Chief Magistrate Kunda Pratapgarh on the application under S.156(3) Cr.P.C. has directed the police authorities to register and investigate the case, so keeping in view of the law laid down by this Court in the case of Gurbachan Singh and others Vs. State of U.P. and others, 2008 (2) ACR 1950 petitioners being prospective accused have no right to challenge the said order as such the present writ petition liable to be dismissed.

4. Sri R. B. S Rathaur, learned counsel for the petitioners, while rebutting the said contention, submits that against the order dated 23.1.2016 passed under S.156(3) Cr.P.C. it is not open for petitioners to raised their grievance by filing revision hence the writ petition is maintainable.

5. In support of his contention, he placed reliance on a Full Bench decision of this Court in the case of Father Thomas v. State of U.P. and others , 2011 (72) ACC 564 the relevant paragraph is quoted as under: -
"65.A. The order of the Magistrate made in exercise of powers under S.156(3) 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.
B. An order made under S.156(3) Cr.P.C is an interlocutory order and remedy of revision against such order is barred under sub-section (2) of S.397 of the Code of Criminal Procedure, 1973.
C. The view expressed by a Division Bench of this Court in the case of Ajay Malviya v. State of U.P. and others reported in 2000 (41) ACC 435 that as an order made under S.156(3) of the Code of Criminal Procedure is amenable to revision, and no writ petition for quashing an F.I.R registered on the basis of the order will be maintainable, is not correct."

6. Next arguments raised by learned counsel for the petitioners are that from the bare perusal of the material on record, the position which emerge out is that no allegation has been made out against the petitioners, so there is no justification or reason to pass an order dated 23.1.2016 directing the police authorities to register and investigate the case against the petitioners on an application moved under S.156(3) Cr.P.C. and also placed reliance on the decision given by Hon'ble teh Apex Court in the case of Shambu Das @ Bijoy Das and Another v. State of Assam , 2010 (71) ACC 367 in which it has been held as under: -
" S.157 of the Code says that if, from the information received or otherwise an officer incharge of a police station has reason to suspect the commission of an offence which he is empowered to investigate, he shall forthwith send a report of the same to the Magistrate concerned and proceed in person to the spot to investigate the facts and circumstances of the case