S.R Singh, J.:— The first information report dated 6-8-1998 on the basis of which case crime No. 743 of 1998 under Section 406/420 IPC has been registered at police station Chakeri, district Kanpur Nagar is sought to be quashed by means of this writ petition under Article 226 of the Constitution. A direction to the respondents not to arrest the petitioner in the case aforestated during the course of investigation has also been sought besides the relief of certiorari.
2. Concededly the impugned F.I.R has been registered pursuant to an order under Section 156(3) of the Code of Criminal Procedure, 1973 (in short the Code) directing the police to register and investigate the case.
3. At the very outset a question arose as to whether the writ petition for quashing the impugned F.I.R sans any challenge to the order under Section 156(3), Cr. P.C passed by the Magistrate is maintainable. Sri Bhagwati Prasad, learned counsel appearing for the petitioner urged that the order under Section 156(3) of the Code has the complexion of an administrative order and hence it is neither revisable under Section 397 of the Code nor open to challenge under Section 482 of the Code and, therefore, the F.I.R could be quashed by this Court under Article 226 of the Constitution in case the Court is of the opinion that taken in its entirety the F.I.R does not disclose commission of a cognizable offence.
4. We have considered the submissions made by Sri Bhagwati Prasad learned counsel appearing for the petitioner. There is no denying the fact that in case the order under Section 156(3) of the Code pursuant to which the impugned F.I.R has been registered is held to be ajudicial order, the petitioner will have remedy under the Code to challenge the said Order and on this ground alone this Court would be justified in declining to invoke its extraordinary jurisdiction under Article 226 of the Constitution. True, alternative remedy is not an absolute bar but a writ cannot issue in derogation of a judicial process. In the instant case the order under Section 156(3) of the Code pursuant to which the F.I.R has been registered and investigation commenced is not under challenge before us and, therefore, this Court would not be justified in interfering with the process of investigation commenced on the basis of an unchallenged order under Section 156(3) of the Code. In support of his contention that the order passed by the Magistrate under Section 156(3) of the Code is not a judicial order, Sri Bhagwati Prasad has submitted that investigation being an executive function, any order directing investigation cannot acquire the complexion of a judicial order. Learned counsel has placed reliance on Section 2(i) of the Code which defines the expression “judicial proceeding” as including “any proceeding in the course of which evidence is or may be legally taken on oath”.
5. Having given our anxious consideration to submissions of the learned counsel for the petitioner we are of the considered view that an order under Section 156(3) of the Code has the complexion of a judicial order amenable to revisional jurisdiction under Section 397 of the Code. Section 156 of the Code occurs in Chapter XIII under the caption — “INFORMATION OF THE POLICE AND THEIR POWERS TO INVESTIGATE”. Sub-section (1) of Section 156 of the Code empowers any police officer incharge of a police station to investigate, without the order of a Magistrate, any cognizable case which the Court having jurisdiction over the local area within the limits of such station would have power to inquire into and try under the provisions of Chapter XIII. Subsection (3) confers a discretion on the Magistrate vested with the authority to take cognizance of an offence under Section 190 of the Code, to order “such an investigation as above mentioned”. Section 202 of the Code also empowers a Magistrate who is authorised to take cognizance of an offence or to whom a complaint has been made over under Section 192 torpostpone the issue of process against the accused if he thinks fit, and either inquire into the case himself or direct an investigation to be made by a police or by such other person, as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Proviso to sub-section (1) of Section 202 of the Code, however, puts an embargo on the power of Magistrate to direct for investigation in that it forbids the Magistrate to issue any such direction where it appears to the Magistrate that the offence complained of Is triable exclusively by the Court of Sessions; or where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200, Cr. P.C Difference between Section 156(3) and Section 200 of the Code Is that the direction for investigation under Section 156(3) can be issued at pre-cognizance stage whereas under Section 200, such direction can be issued at the post cognizance stage. Where a Magistrate chooses to take cognizance he can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightway issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the statement of the complainant or his witnesses or postpone the issue of process and direct an enquiry by himself; or postpone the issue of process and direct an inquiry by any other person or an investigation by the police. But where a Magistrate orders an investigation by the police of the pre-cognizance stage under Section 156(3) of the Code and receives the report “thereupon he can act on the report and he can discharge the accused or straightway issue process against the accused or apply his mind to the complaint filed before him and take action under Section 190” Tula Ram v. Kishore Singh, (1977) 4 SCC 459 : AIR 1977 SC 2401. In Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy, (1976) 3 SCC 252 : AIR 1976 SC 1672 : 1976 Cri LJ 1361 the Supreme Court has described the “nature” of the order for investigation at pre-cognizance stage under Section 156(3) of the Code as “peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1)” and “discretion” vested in the Magistrate as “judicial” one as would be evident from the following observations made by their Lordships:
“Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceedings under Section 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a). If, Instead of proceeding under Chapter XV, he has, in the judicial exercise of his discretion. taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence.”
6. The observations aforestated are decisive of an order under Section 156 being of judicial nature. Investigation under Section 156(3) of the Code albeit “embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge sheet under Section 173” Devarapath Lakshmi narayana Reddy v. V. Narayana Reddy, (1976) 3 SCC 252 : AIR 1976 SC 1672 but the discretion vested in the Magistrate to either take cognizance under Section 190 and follow the procedure prescribed under Sections 200 and 202 of the Code or direct police investigation under Section 156(3) and on receipt of the report proceed according to law. Is a judicial discretion. The decision aforesaid has been quoted with approval in Randhir Singh Rana v. State (Delhi Administration), (1997) 1 SCC 361 : AIR 1997 SC 639. The Magistrate on receipt of a complaint is bound to apply his judicial mind and take a decision as to whether he should take cognizance of the offence under Section 190 of the Code or order for an investigation under Section 156(3) of the Code or in cases not falling under the proviso to Section 202, order an investigation by the police which would be in the nature of an enquiry as contemplated by Section 202 of the Code. The decision making process, in a sense, involves judicious approach and exercise of judicial discretion. The decision to direct police investigation in our opinion, cannot be termed executive in nature. To accept the contention of Sri Bhagwati Prasad that the power of the Magistrate to direct police investigation under Section 156(3) of the Code is an executive power, will be tantamount to negation of separation of executive power from judicial power. In such view of the matter, we are of the considered view that the order under Section 156(3) of the Code directing the police to register and investigate the case, has the complexion of a judicial order which is open to challenge under the Code itself. Section 2(i) of the Code, reliance on which was placed by Sri Bhagwati Prasad does not support the contention that the order under Section 156 of the Code is not a judicial order. The inclusive detention of the expression “judicial proceeding” contained in Section 2(i) shows that the definition is not exhaustive. Mere fact that the order under Section 156(3) of the Code directing police investigation is passed before taking any evidence on oath is no ground to hold that such order is in the nature of an executive order. Once a complaint is filed the Court of a Magistrate has power to take cognizance under Section 190 of the Code and it is the duty of the Magistrate to apply his judicial mind and decide as to which of the courses open to him in law he is going to follow. In the course of the proceeding evidence may be legally taken on oath” if the Magistrate ultimately decides to take cognizance and issue process on receipt of the report called for under Section 156(3) of the Code. Since the order under Section 156(3) of the Code passed by the Magistrate directing the police to register and investigate the case is not under challenge, it would not be apt and proper for us to interfere with the process of investigation being conducted pursuant to a judicial order passed by the Magistrate under Section 156(3) of the Code.
7. In view of the above discussion, the writ petition fails and is dismissed as not maintainable. Interim order stands discharged.
8. Petition dismissed.