Full Judgment
M.K. Mittal, J.
1. These applications have been filed against the order passed by learned Magistrate under Section 156(3), Cr.P.C. whereby they directed for registration of first information report and investigation of the case. In all these matters first information report has not yet been registered as stated by the applicants. Since the common question of law is involved they have been heard together and are being decided by one order.
2. Criminal Misc. Application No. 26622 of 2007 has been filed against the order dated 19-9-2007 passed by C.J.M., Mainpuri in Criminal Misc. Case No. 311 of 2007. Criminal Misc. Application No.26623 of 2007 has been filed against the order dated 27-9-2007 passed by C.J.M., Allahabad in Criminal Misc. Case No. 779 of 2007, Criminal Misc. Application No. 2778 of 2007 has been filed against the order dated 30-10-2007 passed by A.C.J.M., Agra in Criminal Misc. Application No. 242 of 2007, Criminal Misc. Application No. 27756 of 2007 has been filed against the order dated 13-11-2007 passed by C.J.M., Bulandshahar in Criminal Misc. Application No. 1210 of 2007, Criminal Misc. Application No. 27758 of 2007 has been filed against the order dated 17~ 10-2007 passed by upper Civil Judge, Court No. 21, Deoria in criminal case No. 81 of 2007 and Criminal Misc. Application No. 27759 of 2007 has been filed against the order dated 5-11 -2007 passed by Special C.J.M., Varanasi in Criminal Misc. Case No. 560 of 2007.
3. I have heard Sri S.K. Yadav, learned Counsel for the applicants in Criminal Misc. Application Nos. 26622 of 2007 and 26623 of 2007, Sri Manu Khare, learned Counsel, for the applicants in Criminal Misc. Appli/ cation No. 27748 of 2007, Sri A.K. Singh, learned Counsel for the applicants in Criminal Misc. Application No. 27756 of 2007, Sri S.K. Dwivedi, learned Counsel for the applicants in Criminal Misc. Application No. 27758 of 2007, Sri S.K. Srivastava, learned Counsel for the applicants in Criminal Misc. Application No. 27759 of 2007 and learned A.G.A. and have perused the material on record.
4. In these matters learned Magistrate finding that prima facie cognizable case was made out directed for registration of the first information report. Contention of learned Counsel for the applicants is that learned Magistrate has erred in passing the impugned orders as cognizable case is not made out against them and the applications under Section 156(3), Cr.P.C. were liable to be rejected. Learned Counsel for the State has raised a preliminary objection and has contended that in these matters the applications are not maintainable as the applicants being proposed or would be accused have no locus to file the applications and to challenge the impugned orders unless the reports-are registered against them.
5. The proceedings under Section 156(3), Cr. PC. are at a pre-cognizance stage and in these proceedings, the accused has no right to appear and to take part. It is a matter between the complainant and the Court and if the Court finds that a prima facie cognizable case is made out from the allegations as made, it can direct for registration and investigation of the case. Admittedly the first information report has not yet been registered and unless the first information report is registered a person cannot be treated to be an accused in the case. When first information report is lodged against accused person only then he will have a right, legal as well as constitutional, to challenge the same.
When the application is filed under Section 156(3), Cr.P.C. in the Court of a Magistrate, it is a matter between the applicant and the Court and the accused does not come into picture as no cognizance of the offence is taken in the matter. The Hon'ble Apex Court has laid down in several cases that the accused does not have any right to interfere in the registration of an FIR or investigation of the same. It is settled position of law that the accused has no right to be heard before he is summoned.
6. Learned Counsel for the applicants has cited the case of Maksud Saiyed v. State of Gujarat and Ors. : (2008)5SCC668 . In that case an order was passed by the learned Magistrate under Section 156(3), Cr.P.C. and on that basis the first information report was registered and case was being investigated by the police. That report was challenged under Section 482, Cr.P.C. in the High Court and the same was allowed and the report as well as the investigation were quashed. Against that order appeal was filed in the Hon'ble Apex Court which was dismissed. In that matter, it was observed that the jurisdiction of the High Court to quash the first information report in exercise of its jurisdiction under Section 482, Code of the Criminal Procedure is well known. The Court may not enter into determination of disputed question of fact at that stage. It may however take note of the allegations made in the complaint petition visa-vis conduct of the parties. In that case allegations as were made against the accused person who were the Director in the Bank taken on the face value were not found to be sufficient to constitute any criminal liability against them. In the present case, this ruling is not applicable as the first information report has not yet been registered.
7. If the first information report is registered the accused gets constitutional as well as legal right to challenge the same as he is made accused. Till the registration of the first information report he is only a prospective or would be accused. In the present case, applicants except Peerzada Ayazuddin alias Rais Mian have also prayed for stay of their arrest on the basis of the first information report which is yet to be lodged. In other words these applicants want the arrest to be stayed on the basis of the report or a document which is still not in existence and no such relief can be granted.
8. Thus I come to the conclusion that the (Applicants who are still not accused have no locus to challenge the order passed under Section 156(3), Cr.P.C. When the report is registered they shall have a right to challenge the same in appropriate proceedings as may be permissible in the law. Thus I come to the conclusion that these applications are not maintainable and are liable to be dismissed and is hereby dismissed.