Case Note & Summary
The case arose from a complaint filed by a social activist against four persons, alleging cognizable offences. The complainant moved an application under Section 156(3) of the Code of Criminal Procedure, 1973, before the Judicial Magistrate First Class, Mapusa, seeking a direction to the police to register an FIR and investigate. By order dated 15 October 2015, the JMFC took cognizance and directed the Porvorim Police Station to register the FIR and proceed in accordance with law. Aggrieved by this order, one of the persons named in the complaint (respondent no.3) filed a criminal revision before the Additional Sessions Judge, Mapusa. The Sessions Judge, by order dated 4 October 2016, allowed the revision, quashed and set aside the JMFC’s order, and remanded the matter for re-hearing. The original complainant then filed a criminal writ petition under Articles 226 and 227 of the Constitution of India read with Section 482 Cr.P.C. challenging the revisional order. At the hearing, respondent no.3 raised a preliminary objection that the petition was not maintainable because the other three persons named as accused in the complaint had not been impleaded. He contended that the non-impleadment was fatal, relying on the Supreme Court’s decisions in Raghu Raj Singh Rousha v. Shivam Sundaram Promoters Private Limited (2009) 2 SCC 363 and Manharibhai Mohanbhai Patel (2012) 10 SCC 517. The petitioner’s counsel argued that the stage under Section 156(3) was pre-cognizance, the accused had no right to be heard, and the Goa Amendment required notice only to the State. He placed reliance on an unreported decision of the Goa High Court. The High Court, after examining the rival contentions and the precedents, found that the JMFC had taken cognizance and directed the registration of FIR, which brought the matter within the ratio of Raghu Raj Singh. The court observed that under Section 401(2) Cr.P.C., no order to the prejudice of any person can be passed without hearing him, and the three other accused were necessary parties who would be prejudiced if the revisional order were to be set aside. The court thus upheld the preliminary objection, holding that the petition was not maintainable without impleadment of the other accused. The matter was liable to be dismissed.
Headnote
A) Criminal Procedure - Investigation - Right of Hearing at Pre-Cognizance Stage - Code of Criminal Procedure, 1973, Sections 156(3), 401(2) - The court considered the preliminary objection to the maintainability of the petition on the ground that the other accused persons were not impleaded. The petitioner had sought a direction for registration of FIR against four persons; the JMFC ordered such registration, taking cognizance and directing investigation. The Additional Sessions Judge quashed that order. In the challenge to that quashing, the other accused were necessary parties. The court examined Supreme Court decisions in Raghu Raj Singh Rousha v. Shivam Sundaram Promoters (2009) 2 SCC 363 and Manharibhai Mohanbhai Patel (2012) 10 SCC 517, and held that when the Magistrate has taken cognizance and directed registration of FIR, the accused have a right to be heard under Section 401(2) Cr.P.C., and the petition is not maintainable without their impleadment. (Paras 2-5) B) Practice and Procedure - Impleadment of Parties - Necessary Party - Code of Criminal Procedure, 1973, Section 482; Constitution of India, Articles 226, 227 - The petitioner filed the petition challenging the revisional order of the Sessions Court that set aside the JMFC’s direction under Section 156(3) Cr.P.C. without impleading the three other individuals named in the complaint. The respondent argued that the other accused were necessary parties and their non-joinder vitiated the petition. The court relied on Raghu Raj Singh and Manharibhai to conclude that in such circumstances, the accused’s presence is required for a just adjudication, and the petition cannot be maintained in their absence. (Paras 2-5)
Issue of Consideration
Whether the criminal writ petition challenging the order of the Additional Sessions Judge quashing the JMFC's direction to register FIR under Section 156(3) Cr.P.C. is maintainable without impleading the other persons named as accused in the complaint?
Final Decision
The Court upheld the preliminary objection that the petition was not maintainable without impleading the other accused persons. It held that the judgment in Raghu Raj Singh v. Shivam Sundaram (2009) 2 SCC 363 squarely applies, and the petition was liable to be dismissed due to non-joinder of necessary parties.
Law Points
- Accused persons have a right to be heard when Magistrate has taken cognizance and directed registration of FIR under Section 156(3) Cr.P.C.
- Non-impleadment of necessary parties vitiates challenge to revisional order quashing such direction
- Section 401(2) Cr.P.C. requires hearing of any person prejudicially affected
