ATTAM PARKASH Vs. STATE

JUDGEMENT

(1.) THE facts relating to this petition for revision, directed against the order of the Additional Sessions Judge, Delhi, may be set out briefly. A report was lodged by one Jagan Nath on December 22, 1954, at the Police station Chandni Chowk under section 381/406, Indian Penal Code, against his munim Gopal Dass, who it was alleged, had failed to account for gold weighing 37 tolas 5 mashas. Gopal Dass according to the report had given this gold to the present petitioner. Attam Parkash for making gajras and Gopal Dass, after receiving these ornaments from the petitioner, failed to restore them to his employer. Gopal Dass absconded and he could be proceeded against. Meanwhile the owner of the ornaments Gurdit Singh registered a case against Attam Parkash under section 406/420, Indian Penal Code, at Police Station Pahar Ganj. On the recommendation of the Illaqa Magistrate Shri P.L. Sondhi, the case against the petitioner Attam Parkash was cancelled. Four years later in 1958 Gurdit Singh moved the police for reinvestigation and on the strength of fresh evidence the prosecution applied to the Court of Shri R.D. Joshi, Magistrate 1st Class, for reviewing the order of his predecessor. Shri P.L. Sondhi. The learned Magistrate declined to review the order and the matter was then taken to the Additional District Magistrate who by his order of the 4th of March, 1959 directed the police to proceed with the investigation. Another application was put in before the trial Magistrate Shri Shyam Behari Lal, to review the order of cancellation but he felt bound by the directions passed by the Additional District Magistrate and by his order of the 14th of December, 1959 decided to proceed with the case.

(2.) ATTAM Parkash them moved the Additional Sessions Judge, in the exercise of revisional jurisdiction, to make a recommendation to this Court that the orders of the Additional District Magistrate and the Magistrate 1st Class, dated the 4th of March, 1959 and the 14th of December 1959, respectively, should be quashed and the order of cancellation made by Shri P.L. Sondhi upheld. Aggrieved by the order of the Additional Sessions Judge, who declined to make the reference, Attam Parkash has come in revision to this Court.

(3.) THERE is no specific provision for cancellation of an offence, but the Magistrate, to whom a report is made, generally acts under section 173, which, as I have said before, is in Chapter XIV. The Magistrate is always to see the material which is placed before him when he passes the order. The possibility of further evidence is always there and to say that the Magistrate in cancelling a case acts judicially, on the evidence in possession of the police at that time would be to exclude for all time a revival of the case even it more evidence is forthcoming. An administrative order could be reviewed at any time while there are limitations placed on the review of a judicial order.