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In a recent case, the Bombay HC quashed the order of the metropolitan magistrate which allowed for intervention application filed by the accused under the section 156(3) of the CrPC and stated that thee accused cannot seek intervention before the registration of FIR.
The petitioner filed an application challenging the order of the metropolitan magistrate of Borivali who allowed the petition of the Respondents who were pleading for permission to intervene under the section 156(3) of the CrPC. He filed application under the section 156(3) of the CrPC pleading the Senior Inspector of Borivali to register an FIR against the respondents for offences under section 420, 354(b), 355, 382, 387, 467, 468, 450, 452, 506(II), 120(b) r/w. 34 of IPC. The respondents, on the other hand asserted that the claims made by the petitioners were false and frivolous.
While allowing the intervention of the respondents under the section 156(3) of the code, the Magistrate placed reliance on the Nitin yashwant Patekar v Maria Luiza Quadros case in which an application for intervention by the accused was rejected by the magistrate. Then, against his order, a petition was filed before the Sessions judge.
The Sessions judge pointed out that the application did not disclose the commission of any cognizable offence but nonetheless held that the magistrate ought to have allowed the intervention as there is no bar on hearing the claims of the parties.
The same case then came up before the single judge bench of this court who confirmed the findings that there is no mention of cognizable offence. But nowhere the High Court has approved the view of the Sessions judge that the magistrate should have allowed the application.
As to the merits of the case, the Court held that at the Pre-cognizance stage where a magistrate is empowered to order investigation into the cognizable case under section 156(1) of CrPC in case the police fails to discharge his duty to register the FIR, the magistrate needs to only determine whether the application discloses cognizable offence and not conduct a deep enquiry into the issue.
Referring to the cases of Anju Choudhariv state of UP, the court held that the error of the court cannot be termed a mere technical error. The Judge has clearly overreached his jurisdiction in “disregard to the settled principles of law”.
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