STATE OF MAHARASHTRA Vs. DNYANOBA BHIKOBA DAGADE

JUDGEMENT

(1.) THESE two petitions, invoking the revisional jurisdiction of this Court, raise an interesting question as to the interpretation of Section 53 of the Code of Criminal Procedure, 1973. Though the point of law arising in the petitions is the same, the facts in the petitions are somewhat different and must, therefore, be separately narrated before appreciating the question of law involved.

(2.) IN Criminal Revision Application No. 295 of 1977, the respondent (hereinafter referred to as "the accused") was charged with an offence punishable under Section 376 of the Indian Penal Code, in the Court of the Judicial Magistrate, First Class at Khandala, of Satara District. The case was registered as C. R. No. 64 of 1976 of the Khandala Police Station. On an application made on 14th Oct. 1976 by the Police Sub-Inspector of Khandala Police Station, the learned Judicial Magistrate, by an order of the same date, directed that the accused should submit himself to the medical officer to enable him to take the blood of the accused for analysis. It is admitted that this order was passed by the Magistrate without hearing the accused. The accused, therefore, made an application on 16th Oct. 1976, pointing out what he characterised as the illegality of the order of the 14th Oct. 1s76, and for cancelling the said order. After hearing the Assistant Public Prosecutor, the learned Magistrate refused to set aside the order passed by him on 14th Oct. 1976, by holding that he was bound by the order passed by him earlier, unless It was set aside by the higher authorities. In other words, he regarded himself functus officio in so far as order for the examination of the blood of the accused was concerned.

(3.) THIS order of the Magistrate, passed on 3rd Nov. 1976, was challenged by the accused in a revision application, being Criminal Revision Application No. 84 of 1976. filed in the Court of the Sessions Judge at Satara. The Revision Application was opposed by the State, by contending firstly that no revision was permitted under the Criminal Procedure Code, 1973, against an order which was interlocutory in nature. According to the State, the order passed by the learned Magistrate on 14th Oct. 1976, as well as on 3rd Nov. 1976, was interlocutory and they were not amenable to the revisional jurisdiction of the Sessions Court, On merits, it was contended on behalf of the State that Section 53 of the Code of the Criminal Procedure allowed the Magistrate to pass an order of the type which was done in the instant case.