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Prem Garg (Real Estate)     22 March 2015

Whether the magistrate can recall or set aside his own order

Proceedings under section 145 Cr.P.C are presently going on and the case is yet to be decided and FINAL JUDGMENT is yet to be passed. On one occasion the 2nd party (against who are the allegations of dispossessing the 1st party by force and illegal means) failed to appear in the Court and the Magistrate passed INTERLOCUTORY ORDER to proceed ex-parte against the 2nd party and fixed next date of hearing. The 2nd party filed application to recall the INTERLOCUTORY ORDER passed to proceed ex-parte. The 1st party (complainant) has drawn the attention of the Magistrate that there is no provision in the entire Cr.PC to recall/ restore/ set aside its own orders, now the Magistrate should hear only the complainant (Ex parte against the 2nd party) to decide as to who (1st of the 2nd party) was in possession of the property, 60 days (two months) before the date when the order under section 145(1) was passed by the Magistrate. Was the Magistrate legally RIGHT/ CORRECT in passing the orders to proceed ex-parte against the accused and thereafter proceed with the case and complete the inquiry without hearing and going through the evidence that the accused (2nd party) may give in case the accused (2nd party) was present before the Magistrate in the hearing? It is correct that there is no provision in the entire Cr.PC that the Magistrate can recall its orders (probably because of the fact that the Magistrate cannot recall its FINAL ORDER). Amendments have been proposed and recommended by the Law Commission to make this provision BUT it is ONLY because of the fact that in case the complainant fails to appear and in that case the matter is dismissed in default of the complainant resulting into FINAL JUDGMENT and the Magistrate on his own cannot recall his order which was a FINAL JUDGMENT. It is ALSO correct that there is no provision in the entire Cr.PC and under section 145 of the Cr.PC that the Magistrate can pass orders to proceed ex-parte against any of the party to the dispute. Hence, the Magistrate erred by passing INTERLOCUTORY ORDER to proceed ex-parte against a party. Now the question IN THE PRESENT CASE is = Whether the Magistrate can recall or set aside his own orders passed u/s 145 CrPC to proceed ex parte against the accused? If no, why and under what provisions of law?


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 2 Replies

T. Kalaiselvan, Advocate (Advocate)     25 March 2015

The provisions of the referred section of law is very clear that the executive magistrate has been empowered under this section to go ahead with the doubts raised by the querist, the provisions of the section may be read once again fully for proper understanding.

Sachin Agarwal (Learner in Law)     03 September 2015

See this judgement.  Hope it helps.

Says that the MM / jmfc court cannot review its own order.

https://indiankanoon.org/doc/549946/

 

 


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