SANJHA Vs. JAYA

JUDGEMENT

(1.) This application in criminal revisional jurisdiction has been referred to a Division Bench by a learned single Judge of this Court as it raises a point of considerable importance in procedural law.

(2.) The short facts relevant for the decision in this case are these. On the 24th of March 1955, a complaint was filed by the petitioner before a Magistrate named Mr. B. P. Srivastava, who, as it appears, was in charge of the Court of the Subdivisional Officer on that date in the absence of the Subdivisional Officer. Mr. Srivastava examined the complainant on solemn affirmation and after seeing the injuries upon the complainant ordered for the summoning of the accused under Section 323 of the Indian Penal Code, and then he directed that the case be transferred to the Court of Mr. T. P. Singh, an Honorary Magistrate, with second class powers, for favour of disposal; and on the 25th March 1955, Mr. T. P. Singh directed processes to be issued on the accused persons.

(3.) It then appears that on the 29th March 1955, an application was filed in the Court of the Subdivisional Magistrate on behalf of the accused persons praying that the order passed by Mr. Srivastava on the 24th March 1955, summoning the accused persons be recalled and for a further order that the case be enquired into by some independent person. Upon this petition, the Subdivisional Magistrate ordered that it be put up with the record on the 4th April 1955. On the 4th April 1955, the Subdivisional Magistrate was otherwise busy and it was directed that the record be put up on the 7th May 1955. On the 7th of April 1955, however, the Subdivisional Magistrate passed the following order: "The learned lawyer for the accused presses for action early. Issue notice to the complainant to appear on 24-4-1955. Show to her lawyer." 24th of April 1955, happened to be a holiday. The matter was accordingly heard by the Subdivisional Magistrate in the presence of the complainant and the accused on the 25th April 1955. The learned Subdivisional Magistrate then recalled the order of Mr. Srivastava which had been passed on the 24th of March 1955, summoning the accused persons under Section 323 of the Indian Penal Code, and directed that the complaint be enquired into by one Sri S. K. Hussain who should submit a report. In the same order he directed that the case way now recalled to his general file. It is against this order dated the 25th April 1955, that the present application was filed on the ground that the order of the Subdivisional Magistrate recalling the order passed by Mr. Srivastava and directing a further enquiry into the case under the provisions of Section 202 of the Code of Criminal Procedure was without jurisdiction.