AI Structured Summary
Not yet generated for this judgment
Judgment
Rule. Rule made returnable forthwith. Heard finally by consent of the parties.
Petitioner has approached this Court challenging the order dated 18.12.2025 by which the learned Additional Sessions Judge, Washim in Criminal Revision No. 21 of 2025, has allowed the revision by quashing and setting aside the order passed by the learned Judicial Magistrate First Class, Washim under Section 156(3) of the Code of Criminal Procedure, 1973 (hereinafter referred as 'Cr.P.C.') directing the registration of the First Information Report against the respondents herein.
Learned counsel for the petitioner submits that the fact that the order dated 29.03.2025 had already culminated to the registration of the FIR and filing of the charge-sheet in the said crime, was brought to the notice of the learned Revisional Court. However, despite of such specific plea raised by the complainant herein, learned trial Court has failed to take into consideration the said fact and had gone ahead to allow the revision only by passing cryptic order by non-application of mind by the learned Judicial Magistrate First Class, Washim.
Shri Kulkarni, learned counsel for the petitioner further submits that FIR was filed on 08.04.2025 pursuant to the order passed under Section 156(3) of Cr.P.C. on 29.03.2025. Thereafter, the revision was filed by the accused persons on 23.05.2025 i.e. after registration of the First Information Report i.e. 08.04.2025. Thus, submission of the learned counsel for the petitioner is that, revision itself was not tenable in view of the fact that FIR was already registered in pursuance to the order dated 29.03.2025. The revision filed challenging the order passed by the learned Judicial Magistrate First Class dated 29.03.2025, thus ought to have been rejected and the accused persons ought to have been relegated to take appropriate remedy to challenge the registration of the FIR. He relied upon the Division Bench Judgment of this Court, in the case of Kailash Dattatraya Jadhav Vs. State of Maharashtra reported in 2016 Mh.L.J Online (Cri) 4, which was also considered in the reference decided by the Full Bench of this Court in the case of Arun P. Gid Vs Chandraprakash Singh reported in 2024(3) Mh.LJ (F.B.) 709, wherein the reference was answered stating that the law laid down by this court in Kailash Jadhav, appears to be correct position of law which has held that the revision against an order directing registration of FIR, after registration of the FIR, cannot be said to be an efficacious remedy and law laid down in the Kailash Jadhav (cited) is the correct position of law. He therefore submits that the learned Revisional Court has committed grave error in entertaining the revision first and then allowing the said revision by setting aside the order passed under Section 156(3) of Cr.P.C. The impugned order passed by the learned revisional court is therefore liable to be quashed and set aside.
As against this Ms. Kaware, learned counsel for the respondent nos. 2 to 10 in Writ Petition No. 122 of 2026 strongly opposes the said writ petition on the ground that though the FIR was registered on 08.04.2025, in pursuance to the order directing registration of FIR dated 29.03.2025, the charge-sheet was filed only on 18.08.2025. The learned counsel for the petitioner submits that revision came to be filed on 23.05.2025 before filing of the charge-sheet. The learned revisional Court has rightly entertained the revision and found fault with the course adopted by the learned Judicial Magistrate First Class, while issuing by directions under Section 156(3) of Cr.P.C. blankly relying upon the affidavit filed by the complainant, which was not in support of the complaint. The affidavit lacks any basic ingredients which are reiterated in the complaint and hence the order passed by the learned Judicial Magistrate First Class under Section 156(3) of Cr.P.C. was found to be passed mechanically without application of mind and hence rightly interfered by the revision court. Ms. Kaware, learned counsel for the respondents further submits that Full Bench of this Court in Arun Gidh Vs. Chandraprakash Singh (supra) was pleased to hold as under :
"127.We are unable to persuade ourselves to agree with the submission of Mr. Desai that the view that after FIR is registered revision is not an efficacious remedy, would render the statutory remedy of revision redundant. The order passed by the revisional Court setting aside a direction for investigation, even after registration of the FIR, cannot be said to be bereft of any utility. If such an order is passed before the completion of investigation, the investigating agency may take the same into account in determining the course the investigation shall culminate into. If such an order is passed, post lodging of the chargesheet, the jurisdictional Magistrate may have the benefit of the said order at the stage of taking cognizance or during the course of the inquiry, as envisaged by the Code. The High Court may also have due regard to the order of the revisional Court while considering the prayer for quashing the FIR and/or prosecution in exercise of writ or inherent jurisdiction."
Relying upon the above observations, Ms. Kaware, learned counsel for the respondents further submits that after filing of the charge-sheet the jurisdictional Magistrate may have the benefit of the said order at the stage of taking cognizance or during the course of the inquiry, as envisaged by the Code. Thus, learned counsel for the respondents submits that accused is not prohibited from filing a revision challenging the illegality committed by the learned Judicial Magistrate First Class, while issuing the directions under Section 156(3) of Cr.P.C. All that as observed by the Hon'ble Full Bench of this Court is that remedy of the revision is not an efficacious remedy. Ms. Kaware, learned counsel for the respondents therefore submits that revision was very much maintainable and was rightly entertained even though FIR was registered and charge-sheet was filed by the prosecution. The learned Revisional Court having found fault in the order passed by the learned Judicial Magistrate First Class was therefore rightly allowing the revision and again directing the learned Judicial Magistrate First Class to reconsider the application afresh.
I have gone through judgment dated 18.12.2025 passed by the learned Additional Sessions Judge, Washim. The Division Bench of this Court in the case of Kalash Dattatraya Jadhav Vs. State of Maharashtra (supra) was pleased to hold as under.
The matter was therefore referred to the Full Bench as there was another Division Bench judgment, which had held that the revision was still maintainable against an order under Section 156(3) of Cr.P.C., despite of the 156(3) of Cr.P.C's order taking cognizance of registration of the FIR, in view of B.S.Khatri Vs. State of Maharashtra reported in 2004(1) Mh.L.J 747 and several other relevant judgments. The Single Bench of the Bombay High Court has referred both these judgments and passed a referral order to be placed before the Chief Justice. The referral order reads as under:
"9.In paragraph 10 of the referral order the learned Single Judge framed the following question, which arose for consideration in these petitions.
"Whether remedy of revision under Section 397 of the Cr.P.C., is available to the person aggrieved by an order directing investigation, to be made pursuant to an order passed under Section 156(3) of Cr.P.C.?"
After going through law on the subject of Section 156(3) of the Cr.P.C. as well as the judgments in the case of Kailash Dattatraya Jadhav Vs. State of Maharashtra (supra) and others taking a view that the revision was not maintainable after registration of the First Information Report and judgment of B.S.Khatri Vs. State of Maharashtra (supra) holding that revision would be maintainable even after registration of the FIR, was pleased to hold as under :
"126.(a) If the FIR is yet not registered, an interim order passed by the revisional court, staying effect and operation of the impugned order under Section 156(3), will have full play and the investigating agency cannot proceed to register the FIR and enter into investigation lest the order passed by the revisional court would be denuded of the meaning and content.
(b)Such an interim order before the registration of the FIR will operate with full force and vigor, irrespective of the nature of the infirmity in the impugned order which weighed with the revisional court to stay such an order.
(c)On the other hand, if the FIR has already been registered, before the revisional court passes an interim order, then the nature of the infirmity in the impugned order may become relevant.
(d)If the revisional court finds that the impugned order suffers from jurisdictional error, (of the nature referred to in Para Nos.119, 120 and 122 above), in our considered view, the revisional court must be construed to have the power to stay further proceedings pursuant to the registration of the FIR if the matter is still at the stage of investigation.
(e)We hasten to add that while passing such an order of stay of the proceedings at the stage of investigation, the revisional Court ought to record reasons which weighed with the court to hold that there appears a jurisdictional error in passing an order under Section 156(3) of the Code and thereupon, in terms, direct that the further proceedings be stayed.
(f)However, where the investigation culminates into lodging of the chargesheet and/or cognizance has been taken by the jurisdictional court, the interim order or final order passed by the revisional court setting aside the order passed by the Magistrate under Section 156(3), will not have the effect of quashing the resultant prosecution."
The question of reference framed by the Hon'ble Full Bench of this Court, was answered as under:
"128.The conspectus of aforesaid discussion is that in our view, the decision of the Division Bench in the case of Kailash Dattatraya Jadhav (supra), that in a case where on the basis of an order under sub-Section (3) of Section 156 of the Code, FIR is registered, the remedy of revision under the Code, is not an efficacious remedy, lays down the correct position in law."
Thus, after going through the answered given in the Full Bench of this Court in the case of Arun Gidh Vs. Chandraprakash Singh (supra), it appears that once the FIR is registered, the remedy of revision under the Code, is not an efficacious remedy and such proposition has been hide to be the correct position of law by the Full Bench of this Court. The said judgment in the case of Arun Gidh Vs. Chandraprakash Singh (supra) was brought to the notice of the learned Additional Sessions Judge, Washim, while the revision was pending for consideration of the Court. Despite of the same, learned Revisional Court appears to have ignored the law laid down by this Court in the Full Bench of this Court in the case of Arun Gidh Vs. Chandraprakash Singh (supra) wherein the challenging of the revision is not an efficacious remedy.
Thus what could be gathered from the judgment of the Full Bench of this Court is that filing of a Revision is not prohibited against an order passed under Section 156(3) Cr.P.C. even after registration of the FIR. However, the efficacious remedy available to the Petitioner is to challenge the registration of the FIR itself, since even if the Revisional Court were to interfere with the order under Section 156(3), the subsequent prosecution already launched upon registration of the FIR cannot be set aside in exercise of revisional jurisdiction. Thus the Revision was filed by the Respondent/Accused was maintainable even though after registration of the FIR.
Now coming to the merits of the order passed by the learned Magistrate issuing process under Section 156(3) Cr.P.C., it is seen that the learned trial Court referred to the complaint and observed that the allegations therein disclose a cognizable offence. It was further noted by the learned Magistrate that the complaint is supported by an affidavit. The record also reveals that the Complainant had approached the concerned police station for lodging a report, but the police failed to take cognizance. The Complainant thereafter approached the Superintendent of Police, yet no action was taken. In these circumstances, the Magistrate found that investigation at the hands of the police was necessary and accordingly directed issuance of directions for registration of the FIR.
The Hon'ble Supreme Court in the case of Om Prakash Ambadkar Vs. The State of Maharashtra and others reported in AIR 2025 SC 970, has clarified the necessary ingredients for an order passed under Section 156(3) of Cr.P.C. and Section 175(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 for permission to register a First Information Report. The said paragraphs nos. 29 to 31 read as under:
"29.Section 175 of the BNSS corresponds to Section 156 of the Code of Criminal Procedure. Sub-section (1) of Section 175 of the BNSS is in pari materia with sub-section 156(1) of the Code of Criminal Procedure except for the proviso which empowers the Superintendent of Police to direct the Deputy Superintendent of Police to investigate a case if the nature or gravity of the case so requires. Sub-section (2) of Section 175 the BNSS is identical to Section 156(2) of the Code of Criminal Procedure. Section 175(3) of the BNSS empowers any Magistrate who is empowered to take cognizance under Section 210 to order investigation in accordance with Section 175(1) and to this extent is in pari materia with Section 156(3) of Code of Criminal Procedure. However, unlike Section 156(3) of the Code of Criminal Procedure, any Magistrate, before ordering investigation under Section 175(3) of the BNSS, is required to:
a. Consider the application, supported by an affidavit, made by the complainant to the Superintendent of Police under Section 173(4) of the BNSS;
b. Conduct such enquiry as he thinks necessary; and
c. Consider the submissions made by the police officer.
30.Sub-section (4) of Section 175 of the BNSS is a new addition to the scheme of investigation of cognizable cases when compared with the scheme previously existing in Section 156 of the Code of Criminal Procedure. It provides an additional safeguard to a public servant against whom an accusation of committing a cognizable offence arising in the course of discharge of his official duty is made. The provision stipulates that any Magistrate who is empowered to take cognizance under Section 210 of the BNSS may order investigation against a public servant upon receiving a complaint arising in course of the discharge of his official duty, only after complying with the following procedure:
a. Receiving a report containing facts and circumstances of the incident from the officer superior to the accused public servant; and
b. Considering the assertions made by the accused public servant as regards the situation that led to the occurrence of the alleged incident.
31.A comparison of Section 175(3) of the BNSS with Section 156(3) of the Code of Criminal Procedure indicates three prominent changes that have been introduced by the enactment of BNSS as follows:
a. First, the requirement of making an application to the Superintendent of Police upon refusal by the officer in charge of a police station to lodge the FIR has been made mandatory, and the applicant making an application under Section 175(3) is required to furnish a copy of the application made to the Superintendent of Police under Section 173(4), supported by an affidavit, while making the application to the Magistrate under Section 175(3).
b. Secondly, the Magistrate has been empowered to conduct such enquiry as he deems necessary before making an order directing registration of FIR.
c. Thirdly, the Magistrate is required to consider the submissions of the officer in charge of the police station as regards the refusal to register an FIR before issuing any directions under Section 175(3).
The learned Magistrate has failed to take into consideration the provisions of Section 175(3) of the Bharatiya Nyaya Sanhita, which are distinct from the earlier provision under Section 156(3) Cr.P.C. In view of Section 175(3), the Magistrate is not only expected to consider the affidavit of the Complainant but is also required to examine the application supported by an affidavit made under Section 173(4). Further, the Magistrate is expected to make such inquiry as deemed necessary and to consider the submissions made in this regard by the concerned police officer before ordering an investigation. The said provision thus provides an additional exercise to be undertaken by the Magistrate prior to directing investigation under Section 175(3). It mandates consideration of the submissions of the police officer so as to ensure that the Magistrate applies judicial mind while dealing with both the application under Section 156(3) and the police officer's submissions, thereby ensuring compliance with the requirement of passing a reasoned order in a more effective and comprehensive manner. The provision, therefore, cannot be held to be directory in nature, and deviation from such prescribed exercise cannot be permitted. The learned Magistrate has, therefore, erred in mechanically directing registration of the FIR. The impugned order passed by the Revisional Court, upon consideration of the entire provision of Section 175(3) of the Bharatiya Nyaya Sanhita, does not appear to suffer from any irregularity or error of law. On the contrary, the impugned order is in greater consonance with the provisions of Section 173 and, therefore, does not warrant interference by this Court in exercise of its extraordinary jurisdiction.
Insofar as the limited question of whether a Revision filed against issuance of directions to register an FIR is maintainable even after registration of the FIR is concerned, it must be noted that, as stated earlier, such a Revision is not prohibited if filed after the directions have culminated in registration of the FIR. In view of the judgment in Arun Gidh v. Chandraprakash Singh (supra), the Revision was maintainable. The learned Revisional Court has rightly entertained the said Revision Application and has also remanded the matter back to the trial Court for fresh consideration. However, as stated above, the prosecution launched against the Accused/Petitioner pursuant to the orders of the learned Magistrate directing registration of the FIR under Section 175(3) cannot be quashed or set aside and the same shall continue.
The Writ Petition is, therefore, devoid of substance and is hereby dismissed. Accordingly, Rule is discharged in aforesaid terms.