The Bombay High Court recently quashed and set aside an order passed by a metropolitan magistrate wherein an intervention application filed by accused was allowed and held that unless process is issued, a person against whom an FIR is sought to be registered cannot intervene through such application under Section 156(3) of the CrPC.
The application under Section 156(3) was filed by one Laxmi Mukul Gupta, who sought an FIR to be registered against the respondents for offences punishable under sections 420, 354(b), 355, 382, 387, 467, 468, 450, 452, 506(II), 120 (b) r/w S.34 of the IPC.
The respondents filed an application on May 26, 2017, claiming that averments made in the 156(3) application are false and frivolous.
Justice Anuja Prabhudessai noted that the magistrate had accepted the respondent counsel’s submissions who placed reliance on the decision of the high court in Nitin Yeshwant Patekar v Maria Luiza Quadros 2016 and the intervention was allowed.
However, the court differed with the magistrate’s view in the matter and said: “A plain reading of this decision (Nitin Yeshwant Patekar v Maria Luiza Quadros) would indicate that this Court had neither endorsed the view of the learned Sessions Judge nor expounded such proposition. Hence, the statement in the impugned order that “the Hon'ble High Court held that there is no bar to hear the Respondent at the time of considering application under Section 156(3)” is totally erroneous and misconceived.”
The court further noted that under Section 154(1) of the CrPC, it is a police officer’s duty to register FIR when any information discloses a cognizable offence. However, when the police officer fails to discharge this primary responsibility, Section 156(1) CrPC empowers the magistrate to order investigation of a cognizable case.
“At this pre-cognizance stage, the Magistrate is only required to arrive at a conclusion that the application discloses cognizable offence in respect of which investigation is intended to be ordered. The Magistrate is certainly not required to embark upon an in-depth roving enquiry as to the reliability and genuineness of the allegations. Thus, the discretion and power of the Magistrate under Section 156(3) of CrPC is very limited. In exercise of such powers the Magistrate cannot travel into the arena of merit of the case. Considering the scope of Section 156 (3) of CrPC and in the absence of any statutory provision, the Respondents could not have been conferred with any right of hearing at pre-cognizance stage.”
Referring to the judgment of the Supreme Court in Anju Choudhari v State of Uttar Pradesh, 2013, and Manharibhai Muljibhai Kakadia v Shaileshbhai Mohanbhai Patel and Ors 2012, Justice Prabhudessai said the magistrate had exceeded his jurisdiction in allowing the application for intervention in total disregard to the settled principles in law. Thus, the order allowing intervention dated August 4, 2017, was quashed and set aside.