DEVASHISH GAUR Vs. STATE OF U P

JUDGEMENT

(1.) BY an order dated 21.7.2008, it was observed that the learned Magistrate should have exercised the power conferred under section 156 (3) Cr.P.C. and direct the police concerned to register a case and investigate it keeping in view of the allegations levelled against the erring persons. It was the case where en ­quiry/investigation was required and which is not possible under the procedure laid down in Chapter XV of Cr.P.C. With this observation, the order dated 8.5.2008 passed by learned Chief Judicial Magis ­trate, Gautam Budh Nagar in Crl. Misc. Applkation No. 166 of 2008 (Devashish Gaur v. Rakesh Verma and others), Police Station Kasna, district Gautam Budh Nagar was set aside and the learned Magistrate was directed to decide the application moved under section 156(3) Cr.P.C. by the complainant -revisionist afresh in accor ­dance with the observations made therein and with this view the revision was finally disposed of. Hence the proposed accused has sought modification in the aforesaid order by moving the present application.

(2.) IT is contended on behalf of the applicant Dr. Rakesh Verma, proposed ac ­cused in the alleged incident (hereinafter referred to as the 'applicant') that the order dated 21.7.2008 was passed behind his back without affording proper opportunity of hearing to the applicant. He has further submitted that in view of sub -section 2 of section 401 of Cr.P.C., no order under this section could be made to the prejudice of accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.

(3.) THE F.I.R. has been registered and the in ­vestigation is going on. It is open for the applicant now to avail the proper remedy available to him against the alleged F.I.R. Relying on the observation made by Hon'ble Apex Court in a case of State of Orissa v. R.C. Lal and Mostt. Simrikhia v. Smt. Dolly Mukherji AIR 1979 SC 87 and Smt. Chhabi Mukherji, (1990) 2 SCC 437 (SC) (SC) once the judgment has been pronounced by this Court either in exercise of its appellate or revisional jurisdiction, no review or revision can be entertained against that judgment as there is no provision in the Code which would enable this Court to review the same or to exercise provisional jurisdiction. The aforesaid modifi ­cation application tent amounts to review of the order dated 21.7.2008 which is not possible in view of the expressed bar provided under section 362 of Criminal Procedure Code. Section 362 of Q -.P.C. reads as under: