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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Rohit B. Deo, J.
Joseph B Braganza – Appellant
Versus
State of Goa – Respondent
Writ Petition No. 1096 of 2023 (F)
Decided On : 17-05-2023
Constitution Bench - Criminal Writ Petition - The court quashed the orders issuing notice to the proposed accused under Sec. 340 of the Criminal Procedure Code, 1973, citing the enunciation of law by the Constitution Bench of the Supreme Court in Iqbal Singh Marwah vs. Meenakshi Marwah and The State of Punjab vs. Jasbir Singh.
Fact of the Case:
The Petition was re-registered as a Criminal Writ Petition. The court heard the Petitioner and the learned Addl. Public Prosecutor. The Petitioner challenged the order issuing notice to the proposed accused, citing relevant Supreme Court decisions.
Finding of the Court:
The court quashed the orders issuing notice to the proposed accused and requested the lower court to proceed with the inquiry under Sec. 340 Cr.P.C. in accordance with the Supreme Court decisions referenced.
Issues: The issue was the validity of the orders issuing notice to the proposed accused under Sec. 340 of the Criminal Procedure Code, 1973.
Ratio Decidendi: The court relied on the enunciation of law by the Constitution Bench of the Supreme Court in Iqbal Singh Marwah vs. Meenakshi Marwah and The State of Punjab vs. Jasbir Singh to quash the orders issuing notice to the proposed accused.
Final Decision: The Petition was disposed of with the orders issuing notice to the proposed accused being quashed and a request for the lower court to proceed with the inquiry in accordance with the Supreme Court decisions.
JUDGMENT
1. The Registry shall re-register the Petition as a Criminal Writ Petition.
2. Heard Ms Aldila Braganza - Petitioner 2 who is appearing in person and the learned Addl. Public Prosecutor Mr Nikhil Vaze. Rule. With the consent of the parties, the Petition is heard finally.
3. Ms Braganza would submit that the order dtd. 10/5/2023, rendered by the learned District Judge-1 and Addl. Sessions Judge cum Spl. Judge, N.D.P.S. Court in CRMA/124 and CRMA/125 of 2023 whereby a notice issued to the proposed accused, is contrary to the enunciation of law of the Constitution Bench of the Supreme Court in Iqbal Singh Marwah vs. Meenakshi Marwah - (2005) 4 SCC 370 which is referred to and relied upon by a relatively recent decision of the Supreme Court in The State of Punjab vs. Jasbir Singh in Criminal Appeal No. 335/2020 decided on September 15, 2022. Ms Braganza is well justified in the submission that the proposed accused has no right of hearing in the proceedings under Sec. 340 of the Criminal Procedure Code, 1973 (Cr.P.C.). The law appears to be well settled in view of the decisions of the Supreme Court, supra.
4. In this view of the matter, the orders impugned whereby the notice is issued to the proposed accused, are quashed.
5. The learned District Judge-1 and Addl. Sessions Judge cum Spl. Judge, N.D.P.S. Court is requested to proceed with the inquiry under Sec. 340 Cr.P.C. in accordance with law and consistent with the declaration of law by the Supreme Court in in Iqbal Singh Marwah vs. Meenakshi Marwah and The State of Punjab vs. Jasbir Singh, (supra).
6. The Petitioners shall appear before the learned District Judge-1 and Addl. Sessions Judge cum Spl. Judge, N.D.P.S. Court on 22/5/2023 and shall place a copy of this order on record.
7. The Petition is disposed of in the aforestated terms.
AI
The main legal point established in the judgment is that the principles of audi alteram partem require affording an opportunity of hearing to the petitioner before passing orders on the Section 340 a....
The principles of natural justice require an opportunity for the accused to be heard before adverse orders are passed under Section 340 CrPC.
Administrative orders without notice and hearing violate natural justice and must be set aside.
The aggrieved party should approach the Judicial Magistrate under Section 156 Cr.P.C before filing a Writ Petition under Section 226 of the Constitution of India.
Confinement under Section 151 of the Criminal Procedure Code can be challenged through a Writ Petition if it is alleged to be illegal, arbitrary, and in violation of constitutional rights.
The main legal point established in the judgment is that the law does not provide for a suspect to have a pre-registration hearing before the registration of an FIR, and the court's decision was base....
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