SYED SHAH RAFIQUAL ISLAM Vs. TARAK CH SANTARA

JUDGEMENT

(1.) This application is under sections 397/401/482 of the Code of Criminal Procedure (hereinafter referred to as the said Act), praying for quashing of the impugned order dated 15.1.85 in Case No. S. 355/84 under section 144 of the said Code.

(2.) The learned advocate for the petitioners has submitted that the case was dropped by an order of the learned Magistrate concerned on 9.1.85, and that thereafter, by the impugned order dated 15.1.85 the case was revived. He has submitted that since the case was dropped, the learned Magistrate after 9.1.85 became functus officio and that he acted without jurisdiction in purporting to revive the case on 15.1.85. In support of his contention, he has cited the case reported in Bindeshwari Prasad Singh v. Kali Singh, where the Supreme Court has laid down that there is no provision in the Criminal Procedure Code empowering a Magistrate to review or recall a judicial order passed by him and that the inherent powers are only vested with the High court. The Supreme Court held that on the facts of that case, the learned Magistrate having become functus officio, had absolutely no jurisdiction to review or recall the order, dismissing the complaint in that case and the remedy of the respondent, was to move Sessions Judge or High Court in revision.

(3.) The learned Advocate for the petitioners has also cited the case reported in Banka Sahu & Anr. v. Pratap Ch. Das and others2, wherein it was held that the order dropping proceeding under Section 145(5) of the said Code is a final order disposing of a case within the meaning of Section 362 of the said Code, and that once such an order has been passed, the learned Magistrate cannot alter or review the same except with regard to any clerical or arithmetical error. The order in that case restoring the proceeding, which had earlier been dropped, was without jurisdiction and in flagrant violation of the provisions of section 362 of the said Code. The order reviving the proceeding dropped earlier was set aside in the exercise of the inherent jurisdiction of the High Court under section 482 of the said Code.