BINOD BIHARI BEHERA AND ORS. Vs. NIRANJAN SAHU

JUDGEMENT

(1.) NIRANJAN Sahu, opposite party in this revision, lodged an information at Tangi Police Station (Tangi P.S. Case No. 75/76) on 31 -5 -1976 at 6.00 p.m. with reward to an occurrence of the same day against the Petitioners and some others. Police, after investigation, submitted charge -sheet under Sections 147, 323 and 324. Indian Penal Code against the Petitioners and a case was registered as G.R. Case No. 394 of 1976 The Magistrate took cognizance of the offences on 29 -10 -1976.

(2.) MR . Ram, learned Counsel appearing for the Petitioners, submits that once the Magistrate passed an order discharging the accused persons under Section 239 of the Code of Criminal Procedure, 1973 (Hereinafter caned the "New Code" , he becomes functus officio and cannot alter/review his previous order; that under Section 362 of the New Code, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error. On the other hand, Mr. Patnaik, learned Counsel appearing for the opposite party submitted that as all the statements of the witnesses that were recorded by the Police were not produced before the Magistrate and the prosecution failed to make out a prima facie case against the accused persons, the Magistrate by his order dated 3 -6 -1977 discharged the accused persons; that the statements of the witnesses were recorded in the connected counter case (Tangi P.S. Case No. 74/76) which was started at the instance of the Petitioners against the opposite party -informant and is the subject matter of G.R. Case No. 393/76 now pending trial before the Magistrate, and when the mistake was detected, the case records were called for and the Magistrate, finding a prima facie case against the accused persons, summoned them to face the trial; and that the Magistrate is justified in the changed circumstances, in altering or reviewing his previous order.

(3.) IN order to appreciate the rival contentions, it is necessary to quote the relevant provisions of both the old and new Code of Criminal Procedure.