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2013 DIGILAW 2023 (BOM)

Sakharam Digambar Mahajan v. State of Maharashtra

2013-09-30

ABHAY M.THIPSAY

body2013
ORDER 1. Heard Mr. S.M.Kulkarni, the learned counsel for the petitioner. 2. The petitioner is the original complainant. He filed a complaint against 11 persons i.e. the respondent nos. 2 to 12 herein, alleging the commission of offences punishable under sections 177 and 182 of the Indian Penal Code. The substance of the allegations was that, the respondent no.1 had given false information to the Vice Chancellor of Swami Ramanand Tirth Marathwada University, Nanded. The Magistrate, upon examining the petitioner as contemplated under section 200 of the Code, formed an opinion that there was a prima facie case for proceeding against the respondents and by his order dated 25.6.2002 directed issuance of process against respondent nos. 2 to 12 (the accused herein) in respect of the aforesaid offences. After the service of summons, some of the accused made an application for rejection of the complaint contending that the cognizance of the alleged offence could not have been taken without a complaint from the Public Servant concerned i.e. the Vice Chancellor of Marathwada University. On this application, by an order dated 12.3.2004, the Judicial Magistrate First Class, Nanded re-called the process issued against the accused persons i.e. the respondent nos. 2 to 12 herein. Being aggrieved by the order passed by the Magistrate, the petitioner moved the Court of Sessions by filing an application for revision. The learned Additional Sessions Judge who heard the revision dismissed the same by an order dated 16.4.2007. 3. Being aggrieved by the order passed by the Judicial Magistrate F.C. recalling the process and the order passed by the learned Additional Sessions Judge, Nanded dismissing the revision application challenging the said order, the petitioner has approached this Court invoking its Constitutional jurisdiction. 4. It is clear that the cognizance of the alleged offences could have been taken by the Magistrate in view of the bar created by clause (a) of Section 195 of the Code of Criminal Procedure. The complaint had not been made by the Vice Chancellor of the said University, or an officer to whom the Vice Chancellor was administratively subordinate. As a matter of fact, no dispute in that regard is raised before me and it is conceded that cognizance of the alleged offences could not have been taken on the complaint filed by the petitioner. 5. As a matter of fact, no dispute in that regard is raised before me and it is conceded that cognizance of the alleged offences could not have been taken on the complaint filed by the petitioner. 5. The only contentions advanced by Mr.Kulkarni, the learned counsel for the petitioner, is that, the Magistrate had no power to ‘recall’ his own order. According to him, in view of the decision of the Supreme Court in case of AdalatPrasad Vs.Rooplal Jindal andothers reported in 2004 (4) Mh.L.J. 274 , the Magistrate had no power to review the order issuing process. He contended that the respondent nos. 2 to 12 were required to approach a superior Court for getting order issuing process quashed, on the ground of non-maintainability of the complaint. 6. I am unable to accept the contention advanced by the learned counsel for the petitioner. 7. Indeed, the Magistrate would have no power to review his order and recall the process issued by himself. It is because, the order issuing process signifies the satisfaction of the Magistrate about existence of sufficient grounds for proceeding and it is only proper that he should not be permitted to re-consider whether sufficient grounds for proceeding against the accused were indeed there. Obviously, this would amount to reviewing his own decision which is, clearly, not permissible. However, in a case where the proceedings before the Magistrate are terminated for some legal defect, the question of the Magistrate ‘reviewing’ his previous order would not arise. When termination of the proceeding is done on account of some legal bar or defect such as the proceedings not having been instituted by a specified person, bar of limitation, lack of sanction, etc. 8. It is not that in this case, the Magistrate had come to a conclusion that complaint was maintainable, or that bar under section 195 of the Code of Criminal Procedure was not applicable. Had it been the case, the contention advanced by the learned counsel for the petitioner would have had some substance. In this case, the Magistrate simply did not notice the provisions of section 195 of the Code. Since the provisions are mandatory in nature, when the same were pointed out, it was obligatory on the part of the Magistrate to terminate the proceedings. In this case, the Magistrate simply did not notice the provisions of section 195 of the Code. Since the provisions are mandatory in nature, when the same were pointed out, it was obligatory on the part of the Magistrate to terminate the proceedings. The contention, therefore, ‘that the learned Magistrate was not empowered to recall the order issuing process’ which suggests that he was forced to continue with the proceedings inspite of it being pointed out to him that there was a legal bar for taking cognizance of the alleged offences, cannot be accepted. Not much importance to term `recall’ used by the Magistrate should be given and it was, perhaps, not necessary to use the term `recall’ in the impugned order. It would have been sufficient to observe that the cognizance of the alleged offences could not have been taken and that therefore, the proceedings were being dropped. Such order, which results in termination of the proceeding is also not a ‘discharge’ proper, but since it has to be differentiated from an order of ‘acquittal’ it is often termed and treated as ‘discharge.’ 9. In any case, since it is evident that cognizance of the alleged offence could not have been taken, there is no question of interfering with the order passed by the Magistrate and permit - or rather force – him to continue the illegal proceedings. 10. The Petition is dismissed.