22 December 2010
whether sub divisional magistrate has power to recall/ review his own order, which is dismissed under Sec 203 of crpc. are there any citations which says, magistrate can review their own judgement
22 December 2010
Dear Respectful Advocates thanks for enlightening with your answers to my query.i have another query regarding this issue, whether sec Sections 411 & 412 Cr.P.C.can interpret that magistrate has power to recall his order,
Sections 411 & 412 Cr.P.C. (Withdrawal and making over of Cases) :
The District Magistrate or Sub-Divisional Magistrate may, for the reasons recorded, make over for disposal any proceedings started before him to any Magistrate subordinate to him and also withdraw any case from, or recall any case which he has made over to, any Magistrate subordinate to him and dispose of such proceedings himself or refer it for disposal to any other Magistrate.
23 April 2011
AIR 2004 SUPREME COURT 4711 "Subramanium Sethuraman v. State of Maharashtra" (From : Bombay)* Coram : 3 N. SANTOSH HEGDE, S. B. SINHA AND TARUN CHATTERJEE, JJ. Criminal Appeal No. 1253 of 2002, D/- 17 -9 -2004. Subramanium Sethuraman, Appellant v. State of Maharashtra and another, Respondents. (A) Criminal P.C. (2 of 1974), S.204, S.362 - ISSUE OF PROCESS - Order of issuance of process - Not permissible for Magistrate to review or to reconsider his decision to issue process in absence of any specific provision to recall such order - Decision of Supreme Court in AIR 2004 SC 4674 : 2004 AIR SCW 5174 : 2004 AIR Jhar HCR 2834 does not require reconsideration. K. M. Mathew v. State of Kerala, AIR 1992 SC 2206 : 1992 AIR SCW 2666 : 1992 Cri LJ 3779, Overruled in Adalat Prasad v. Rooplal, AIR 2004 SC 4674 : 2004 AIR SCW 5174 : 2004 AIR Jhar HCR 2834. (Paras 14, 15) (B) Criminal P.C. (2 of 1974), S.204, S.482 - ISSUE OF PROCESS - INHERENT POWERS - Issuance of process - Challenge as to - Once plea of accused is recorded under S. 252 - It is not open to accused to seek recall of summons or to seek discharge - Only remedy available to aggrieved accused is by way of petition under S. 482. (Para 19) Cases Referred : Chronological Paras Adalat Prasad v. Rooplal Jindal AIR 2004 SC 4674 : 2004 AIR SCW 5174 : 2004 AIR Jhar HCR 2834 9, 10, 11, 12, 14, 15, 17, 19 K. M. Mathew v. State of Kerala, AIR 1992 SC 2206 : 1992 AIR SCW 2666 : 1992 Cri LJ 3779 : (1992) 1 SCC 217 (Overruled in AIR 2004 SC 4674 : 2004 AIR SCW 5174 : 2004 AIR Jhar HCR 2834) 2, 6, 9, 11, 12, 13, 14, 15Ranjit Kumar, Sr. Advocate, P. B. Suresh, Advocate for M/s. Temple Law Firm, Advocates, with him, for Appellant; Chinmay Khaladhar, S. K. Nandy, Arun Pedenkar, S. S. Shinde and Ravindra Keshavarao Adsure, Advocates, for Respondents.
23 April 2011
AIR 2004 SUPREME COURT 4674 "Adalat Prasad v. Rooplal Jindal" = 2004 AIR SCW 5174 (From : 2001 (1) Rec Cri R 12 (Delhi)) Coram : 3 N. SANTOSH HEGDE, S. B. SINHA AND A. K. MATHUR, JJ. Criminal Appeal No. 91 of 2002, D/- 25 -8 -2004. Adalat Prasad, Appellant v. Rooplal Jindal and others, Respondents. Criminal P.C. (2 of 1974), S.204, S.203 - COGNIZANCE OF OFFENCE - ISSUE OF PROCESS - MAGISTRATE - Cognizance of offence - Issuance of summons - Recalling of, by Magistrate - Is without jurisdiction since review of order is not contemplated in Cr. P.C. - Remedy to accused lies in invoking S. 482, Cr. P.C. K. M. Mathew v. State of Kerala, AIR 1992 SC 2206 : 1992 AIR SCW 2666 : 1992 Cri LJ 3779, Overruled. After taking cognizance of the complaint and examining the complainant and the witnesses if Magistrate is satisfied that there is sufficient ground to proceed with the complaint he can issue process by way of summons under S. 204 of the Code. Therefore what is necessary or a condition precedent for issuing process under S. 204 is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry contemplated under S. 202 that there is sufficient ground for proceeding with the complaint to issue process under S. 204 of Code. In none of these stages the Code has provided for hearing the summoned accused, for obvious reasons because this is only a preliminary stage and the stage of hearing of the accused would only arise at a subsequent stage provided for in the latter provision in the Code. It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provision of Ss. 200 and 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking S. 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate Criminal Courts, the remedy lies in invoking S. 482 of Code. AIR 1992 SC 2206 : 1992 AIR SCW 2666 : 1992 Cri LJ 3779, Overruled. (Paras 14, 15, 16)
23 April 2011
Dear Friend, Your citation shows the second complaint. Once the complaint is dismissed by the Magistrate, the second complaint can be filed. This is not review of the orders. The second complaint is a fresh case in the eye of the law.