TRAJANO DMELLO Vs. STATE

JUDGEMENT

(1.) The Petitioner herein by invoking the jurisdiction of this Court in terms of Articles 226 and 227 and Section 482 of Cr.P.C. has challenged the Order dated 04.10.2016 passed by the learned Additional Sessions Judge, Mapusa, dated 04.10.2016 pursuant to which he had allowed the Petition and quashed and set aside the order passed by the learned Magistrate and remanded the matter to the Magistrate to rehear the parties and to pass order in terms of law. It is in this petition, that preliminary objections were raised to its very maintainability and it is on that count that the matter is being heard and decided appropriately.

(2.) Shri S. S. Kantak, learned Senior Advocate came to be heard on behalf of the respondent no.3, whose contention was that the complaint was filed by the petitioner against four named persons. An application was moved at his instance under Section 156(3) Cr.P.C. in which again there was a reference to the named persons in the complaint not being proceeded with and seeking the intervention of the learned JMFC to direct the respondent no.1 to carry out the investigation in his complaint in terms of Section 156(3) Cr.P.C. The learned JMFC had passed the order dated 14.10.2015 ? (15.10.2015) directing the incharge of the Porvorim Police Station to register the FIR in terms of the complaint filed by the petitioner and to proceed in accordance with law. The learned Addl. Sessions Judge by his Order dated 04.10.2016 had quashed and set aside this order passed by the learned JMFC. Therefore, it was incumbent upon the petitioner to have joined the other three persons named in the complaint as the party-respondents to this petition. He placed reliance in Raghu Raj Singh Rousha vs. Shivam Sundaram Promoters Private Limited & anr., (2009) 2 SCC 363 and Manharibhai Mohanbhai Patel & Ors., (2012) 10 SCC 517. The powers under section 482 of the Cr.P.C. had to be exercised to secure the ends of justice and any order passed in favour of the three accused would defeat the ends of justice. The Petition had therefore to be dismissed.

(3.) Shri Rohit Bras De Sa, learned Advocate for the petitioner submitted at the outset that Section 156(3) Cr.P.C. was contained in Chapter XII and submitted that the judgment in Raghu Raj was clearly distinguishable. The Judgment in Manharibhai dealt with Chapter XV and in any event both these judgments were in terms of Chapter XV of the Code of Criminal Procedure where the Magistrate had taken cognizance and were clearly distinguishable. He relied on the order of a learned Single Judge in State vs Shri Sainath Shivram Jhalmji [Criminal Revision Application No.4/2009] in support of his case. It was his contention next that in terms of the Goa Amendment to Section 156(3) Cr.P.C., a notice was required to be given to the State and there was no right in the accused to be heard. It was his contention therefore that the preliminary objections had to be dismissed.