Mahendrapal Jha vs Ram Autar Sharma and Others

B.K. Rathi, J.—This revision was filed under Sections 397/401, Cr. P.C. against the order dated 20.12.1996 passed by X Ith A.C.J.M., Allahabad.

The facts of the case are that the revisionist moved an application against the opposite parties u/s 156(3), Cr. P.C. That application was allowed by the learned A.C.J.M. by order dated 12.7.1996. However, when the order reached at the police station, the police submitted a report that cause of action for this offence arose at Haridwar and therefore, the investigation should also be done at Haridwar. On this report, the learned Magistrate considered the matter and by order dated 20.12.1996, he recalled the order. Aggrieved by that order, the present revision has been filed. The revision was allowed at the admission stage on 14.7.1999 observing that the learned Magistrate has no jurisdiction to recall the order. Aggrieved by it, the opposite parties moved an application for recalling of the order of this Court dated 14.7.1999. The order was ex parte and, therefore, it was recalled by the order dated 17.12.1999. Therefore, this revision has again come before me for hearing.

I have heard Sri R. B. Sahai, learned Counsel for the revisionist, Sri B. Malik, learned Counsel for the opposite party Nos. 1 and 2 and the learned A.G.A.

It is contended by the learned Counsel for the revisionist that there is no provision under Cr. P.C. to recall the order. That, therefore, the order of the learned Magistrate dated 20.12.1996 is without jurisdiction. That once the case was registered by the order of the Magistrate, it was the duty of the police to investigate the case and to submit either the charge-sheet or the final report. That it was beyond the jurisdiction of the police to request to the Magistrate to recall its own order.

No doubt it is true that there is no provision under the Cr. P.C. for recall of the order. However, if an order is without jurisdiction, it can always be recalled. Clause (3) of Section 156, Cr. P.C. provide "that any Magistrate empowered u/s 190 may order such an investigation as above mentioned". u/s 190, Cr. P.C., the Magistrate having jurisdiction only can take cognizance. Therefore, the Magistrate having jurisdiction to take cognizance of the offence alone could pass an order u/s 156(3), Cr. P.C. If the Magistrate has no jurisdiction to take cognizance of the offence but has passed the order u/s 156(3), Cr. P.C., the said order is without jurisdiction and may be recalled by the Magistrate.

In this case, the learned Magistrate had thoroughly considered the facts of the case, the allegations made in the application u/s 156(3), Cr. P.C. and the report of the police in the order dated 20.12.1996. After considering all the facts, he came to the conclusion that the entire cause of action arose at Haridwar, therefore, his order u/s 156(3), Cr. P.C. was without jurisdiction. The learned Magistrate, Therefore, recalled the order. There is no illegality in the order.

In the circumstances, the revision is fit to be dismissed and is hereby dismissed. However, it may be clarified that the dismissal of this revision will not bar the filing of the application u/s 156(3), Cr. P.C. by the revisionist before the Magistrate having jurisdiction of the place where the offence has been committed.