SADAN KUMAR MISHRA Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned Counsel for the petitioner and the A.P.P. appearing on behalf of the State.

(2.) The petitioner is aggrieved by the order dated 07.05.2005 passed by the Chief Judicial Magistrate, Bettiah in Shikarpur Police Station Case No. 22 of 2003 and the order dated 10.01.2008 passed by the Additional Sessions Judge, Fast Track Court No. III, West Champaran, Bettiah in Criminal Revision No. 138 of 2006.

(3.) A First Information Report was instituted in which the Police submitted final form which was accepted by the Chief Judicial Magistrate by order dated 08.11.2004 and the matter was transferred to the Court of the Judicial Magistrate, 1st Class, Bettiah to hear the matter on the protest petition filed on 09.03.2003 before the submission of the final form. Thereafter, the Investigating Officer filed an application praying therein for grant of permission for making re-investigation of the case. On 22.04.2005, the Chief Judicial Magistrate called for the records of Shikarpur Police Station Case No. 22 of 2003 from the Court of the Judicial Magistrate, 1st Class, and passed an order permitting for further investigation of the case. It is contended on behalf of the petitioner that the Chief Judicial Magistrate did not have the power to pass an order recalling the records once it was transferred for enquiry under Section 192 of the Code of Criminal Procedure. It is submitted that Section 410 of the Code of Criminal Procedure provides that "Any Chief Judicial Magistrate may withdraw any case from, or recall any case which he has made over to, any Magistrate subordinate to him, and may inquire into or try such case himself, or refer it for inquiry or trial to any other such Magistrate competent to inquire into or try the same". It is contended that in the present case, the Chief Judicial Magistrate had not recalled the file either for the purposes of inquiry or for the purposes of trying the case himself rather he had recalled it for the purposes of passing an order in the Police case. It is said that once final form has been submitted and the case was transferred to the Judicial Magistrate, the Chief Judicial Magistrate could not have the power in the matter to pass any further orders. For the purpose, learned Counsel for the petitioner has referred to a decision rendered in the case of Sarkar v. M/s M. R. T and Special Maintenance and others, 1980 CrLJ 948. In this case, it was contended that the Magistrate does not have the power to recall any order passed by him. The Patna High Court has held that the effect would be disastrous if the Magistrate was given the power to recall judicial orders. Discussing the provision of Section 410 of the Code of Criminal Procedure, it has been observed that the Chief Judicial Magistrate has the power to withdraw any case which he has made over to the Magistrate subordinate to him and further authorize him to inquire into or try such case himself, or refer it for inquiry or trial to any other Court. I may refer to the order which was under challenge in the case of Sarkar. The Magistrate concern had passed the order taking cognizance. It was brought to the notice of the Magistrate that the cognizance has been taken beyond the period of limitation and as such he passed an order recalling the file to pass fresh orders. It appears that the facts in the case of Sarkar and the present case are very different. It is, in this context, that the Court has also emphasized the fact that the purpose for which the power are to be exercised are mentioned in Section 410 of the Code of Criminal Procedure which is for the purpose of inquiring the matter himself or for the purpose of trying the case. In the present case, the peculiar circumstances have arisen. It is undisputed that the Shikarpur Police Station Case No. 22 of 2003 was disposed of inasmuch as the final report was accepted by the Chief Judicial Magistrate, Bettiah and thereafter he transferred the record to the Magistrate under Section 192 of the Code of Criminal Procedure for the purposes of making an inquiry with respect to the protest petition filed on behalf of the informant. Now, the question that would arise in this case is which of the Court could have considered the application under Section 173 (8) of the Code of Criminal Procedure filed on behalf of the Police Authorities. The Magistrate before whom the records were placed for the purpose of conducting an inquiry on the protest petition, or the Court of the Chief Judicial Magistrate before whom Shikarpur Police Station Case No. 22 of 2003 was placed. Had the Investigating Officer, Shikarpur filed the application under Section 173 (8) before the Magistrate where the records were pending, the Magistrate obviously would not have looked into the matter and would have referred the matter either to the Chief Judicial Magistrate or to the Sessions Judge who after passing appropriate order, would have transferred the file to the Chief Judicial Magistrate.