Case Note & Summary
The petitioner, Mrs. Laxmi Mukul Gupta, filed an application under Section 156(3) of the Code of Criminal Procedure, 1973 before the Metropolitan Magistrate, 26th Court, Borivali, Mumbai, seeking a direction to the Senior Inspector of Borivali Police Station to register an FIR against respondent nos. 2, 3, and 4 for various offences under the Indian Penal Code. During the pendency of this application, respondent nos. 2, 3, and 4 filed an intervention application claiming that the allegations were false and that they should be heard to assist the court. The learned Magistrate allowed the intervention application by order dated 4th August 2017. The petitioner challenged this order before the Bombay High Court. The High Court examined the nature of proceedings under Section 156(3) Cr.P.C., which are pre-cognizance in nature, and held that the proposed accused have no right of hearing or intervention at this stage. The court relied on the principle that Section 156(3) Cr.P.C. is a procedural provision enabling the Magistrate to direct investigation, and the accused cannot be heard before cognizance is taken. The court set aside the Magistrate's order, holding that it was without jurisdiction and would frustrate the purpose of the provision. The petition was allowed.
Headnote
A) Criminal Procedure - Right of Hearing - Section 156(3) Cr.P.C. - Pre-Cognizance Stage - The proposed accused have no right of hearing or intervention in an application under Section 156(3) Cr.P.C. before the Magistrate takes cognizance. The Magistrate's order allowing intervention was held to be without jurisdiction and set aside. (Paras 1-12)
B) Criminal Procedure - Intervention Application - Section 156(3) Cr.P.C. - Maintainability - An application for intervention by proposed accused at the pre-cognizance stage is not maintainable as the proceedings are only between the complainant and the Magistrate. The court held that allowing such intervention would frustrate the purpose of Section 156(3) Cr.P.C. (Paras 5-12)
Issue of Consideration
Whether the proposed accused have a right of hearing or intervention in proceedings under Section 156(3) of the Code of Criminal Procedure, 1973 before the Magistrate takes cognizance.
Final Decision
The High Court allowed the writ petition and set aside the order dated 4th August 2017 passed by the learned Metropolitan Magistrate, 26th Court, Borivali, Mumbai, allowing the intervention application.
Law Points
- Right of hearing
- Pre-cognizance stage
- Section 156(3) Cr.P.C.
- Intervention application
- Proposed accused
- Natural justice
- Criminal Procedure Code
Case Details
2018 LawText (BOM) (01) 51
Writ Petition No.3851 of 2017
Smt. Anuja Prabhudessai, J.
Mr. A.M. Saraogi for the Petitioner, Mr. V.V. Gangurde, APP for Respondent No.1-State, Mr. A.H. Ponda i/b. Mr. Sunil D'souza for Respondent No.4, Mr. Amarendra Mishra for Respondent Nos.2 and 3
Mrs. Laxmi Mukul Gupta @ Lipi
The State of Maharashtra, Kanhaiyalal B. Gupta, Smt. Geeta Kanhaiyalal Gupta, Mr. Jayesh Vinubh
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Criminal writ petition challenging the order of the Metropolitan Magistrate allowing intervention application in proceedings under Section 156(3) Cr.P.C.
Remedy Sought
The petitioner sought quashing of the order dated 4th August 2017 allowing the intervention application filed by respondent nos. 2, 3, and 4.
Filing Reason
The petitioner filed an application under Section 156(3) Cr.P.C. seeking direction to register an FIR against the respondents. The respondents filed an intervention application claiming the allegations were false and sought to be heard.
Previous Decisions
The learned Metropolitan Magistrate, 26th Court, Borivali, Mumbai, allowed the intervention application by order dated 4th August 2017.
Issues
Whether the proposed accused have a right of hearing or intervention in proceedings under Section 156(3) Cr.P.C. before cognizance is taken.
Submissions/Arguments
The petitioner argued that the intervention application was not maintainable as the proposed accused have no right of hearing at the pre-cognizance stage under Section 156(3) Cr.P.C.
The respondents argued that they should be heard to expose the falsehood of the allegations and assist the court in arriving at a just decision.
Ratio Decidendi
In proceedings under Section 156(3) Cr.P.C., which are pre-cognizance in nature, the proposed accused have no right of hearing or intervention. The Magistrate's order allowing intervention was without jurisdiction and liable to be set aside.
Judgment Excerpts
The Petitioner herein, who is the complainant in C.C. No.113/SW/2017 has challenged the order dated 4th August 2017 whereby the learned Metropolitan Magistrate, 26th Court, Borivali, Mumbai, has allowed the application filed by the Respondent Nos.2,3 and 4 herein to permit them to intervene in an application under Section 156(3) of the Code of Criminal Procedure.
The Petitioner herein had filed an application under Section 156(3) of the Cr.P.C. with a prayer to direct the Senior Inspector of Borivali Police Station to register a FIR against the Respondent Nos.2,3 and 4 and two others for the offences punishable under Sections 420, 354 (b), 355, 382, 387, 467, 468, 450, 452, 506(II), 120(b) r/w. 34 of the IPC.
Procedural History
The petitioner filed an application under Section 156(3) Cr.P.C. before the Metropolitan Magistrate, 26th Court, Borivali, Mumbai. During its pendency, respondent nos. 2, 3, and 4 filed an intervention application dated 26th May 2017. The Magistrate allowed the intervention application by order dated 4th August 2017. The petitioner challenged this order by filing Writ Petition No.3851 of 2017 before the Bombay High Court, which was allowed on 19th January 2018.
Acts & Sections
- Code of Criminal Procedure, 1973: 156(3)
- Indian Penal Code, 1860: 420, 354(b), 355, 382, 387, 467, 468, 450, 452, 506(II), 120(b) r/w 34
