Karnataka High Court
Sri. H.V. Suresh S/O. Late N. Venkata ... vs State Of Karnataka By Yeshwanthpura ... on 29 November, 2007
Equivalent citations: 2008CRILJ1013, 2008(1)KARLJ680, 2008 CRI. L. J. 1013, (2008) 65 ALLINDCAS 676 (KAR), 2008 (1) AIR KANT HCR 505, 2008 (65) ALLINDCAS 676, 2008 (61) ALLCRIC 33 SOC, (2008) 2 ALLCRILR 710, (2008) 1 KANT LJ 680
Author: Subhash B. Adi
Bench: Subhash B. Adi
ORDER Subhash B. Adi, J.
1. The respondent No. 2 filed a private complaint in P.C.R. No. 88/2000 under Section 200 Cr.P.C., alleging that the petitioners herein have committed an offence punishable under Sections 467, 468, 471, 420 read with Section 120-B, 109 further read with Section 34 IPC. In pursuance of the private complaint, the learned Magistrate took the cognizance of the complaint and thereafter based on the sworn statement of the complainant and the material, issued summons, and referred the matter to the Police for further investigation under Section 156(3) Cr.P.C. The Police on investigation submitted a 'B' report on 23.6.2001. Thereafter, the matter was posted for hearing on 1.12.2001, the complainant and his Counsel were absent, on the said day. The learned Magistrate accepted the 'B' report. However, at later stage, the complainant filed an application recalling the order of acceptance of the 'B' report. The learned Magistrate recalled the order and posted the matter to hear on objection to 'B' report.
2. In view of the acceptance of the 'B' report, the petitioners, who were arrayed as accused, did not participate in the proceedings. The matter was adjourned from time to time for hearing the objection to the 'B' report. In the meanwhile, the complainant filed Criminal Contempt of Court Case No. 50/2001 before this Court alleging that, the Investigating Officer has committed contempt of the court in not complying with the direction issued by the learned Magistrate by investigating the matter and in turn, he has submitted a 'B' report by relying on the civil litigation.
3. In the said contempt, the petitioners, who were accused in the trial court, were not made parties. The Division Bench of this Court by order dated 24th June 2002 observed that, some error has been committed by the Investigating Officer, as the Investigating Officer regardless of the civil litigation should have investigated the matter and further observed that, if the prima facie case is made out within the jurisdiction of the Police to register the offence in accordance with law, if, on the other hand, the investigation does not disclose the commission of offence, then the Investigating Officer can file his report to the Court. Based on the said observation, it appears, the Police made further investigation and thereafter, the Police filed charge sheet before the learned Magistrate on 20th October 2004. The learned Magistrate based on the charge sheet issued the summons on 20th October 2004. On 19.7.2004, the learned Magistrate recorded that, accused No. 1 is dead. Further, ordered for issue of summons to accused Nos. 2 to 8 and adjourned the matter to 16.10.2004.
4. When the summons were served on the accused, they have filed this Criminal Petition.
Learned Counsel for the petitioners submits that, in what manner the investigation has to be done by the Police is the exclusive jurisdiction of the Police and no direction could be issued by the Court. The Police on investigation has submitted 'B' report. The learned Magistrate by order dated 1.12.2001 has accepted the 'B' report. Once 'B' report is accepted, the case is deemed to have been closed. There is no need to the Magistrate to proceed further. Once the order is passed by the learned Magistrate either closing the case or accepting the 'B' report, he has no jurisdiction to recall his own order and this aspect of the matter is decided by the Apex Court in a judgment reported in 2004 AIR SCW 5174 in the matter of Adalat Prasad v. Rooplal Jindal and Ors. that, recalling of the order by the Magistrate is without jurisdiction. He submitted that, Section 203 of Cr.P.C. does not contemplate the review of an order, there is no power vested in the learned Magistrate to review the order nor has inherent power to recall the order. The remedy only lies by invoking Section 482 Cr.P.C. He also relied on another decision of this Court in the matter of Laxminarayan v. Ramaswamy wherein this Court had considered the question as to whether the Magistrate has jurisdiction or not to restore or to revive the complaint dismissed for the absence of the complainant on a subsequent application of the complainant and this Court held that such power is not vested with the learned Magistrate.
5. As regards to the order passed by the Division Bench in contempt of court case, learned Counsel for the petitioners submitted that the petitioners herein were not parties to the said proceedings and the complainant, who had filed the contempt of court case, has not disclosed that the 'B' report has been accepted by the learned Magistrate and further submitted that, this Court without having the knowledge of the acceptance of the 'B' report by the learned Magistrate, has proceeded to pass the order on the ground that the 'B' report submitted by the Police relying on the civil litigation is improper. He also submitted that there is no direction as such issued by this Court to the learned Magistrate to recall the order or proceed with the matter. It only directed that, if the Police finds any material, it can file a report. He further submitted that the proceedings initiated by the learned Magistrate based on the charge sheet after the acceptance of the 'B' report is parse illegal and vitiated in law.
6. Learned Counsel appearing for the respondent No. 2 - complainant submitted that this Court in the contempt of court case observed that, 'B' report submitted by the Police is parse illegal as the Police cannot submit the 'B' report only on the ground that the civil litigation is pending. The Police has a duty to investigate the matter and submit a report based on the evidence and this Court considering the said fact has observed that the Police to investigate the matter and submit a report and if the charge sheet is submitted, the learned Magistrate to proceed. He also submitted that the learned Magistrate has exercised his power strictly in view of the order passed by the Division Bench.
7. In pursuance of the complaint filed by the complainant, summons was issued and the matter was referred to the Police under Section 156 Sub-section (3) of Cr.P.C. The Police on investigation submitted a 'B' report. It is clear from the order sheet of the learned Magistrate that on 1.12.2001, accepted the 'D' report and it is thereafter, he has recalled his own order on the ground that, an opportunity is required to be given to the petitioners.
8. The short question that arises for consideration is:
Whether the Magistrate has power to recall his own order of acceptance of 'B' report?
9. The Apex Court in the matter of ADALAT PRASAD (supra), has observed that:
15. It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provision of Sections 200 and 202, the order of the Magistrate may he vitiated, but then the relief an aggrieved accused can obtain at that is not by invoking Section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal Courts, the remedy lies in invoking Section 482 of Code.
Further held that, the Magistrate once passes an order has no power to review his own order.
10. This Court has also held in the matter of Laxminarayan (supra) that, the Magistrate has absolutely no power to recall the order of dismissing the complaint. This Court considering the decision of the Apex Court has held that, once the order is passed by the Magistrate, it becomes final and he cannot recall or review the order and the said order can be questioned only by way of Section 482 petition and not by the learned Magistrate.
11. Insofar as the observation made by the Division Bench is concerned, the Division Bench made the observation without having the knowledge of acceptance of the 'B' report by the magistrate. This Court under those circumstances observed that, the Police filed 'B' report on the ground of pendency of civil litigation without making any investigation. The Division Bench of this Court has not observed that the Magistrate has power to recall the order. Since the matter has been settled by the Apex Court as well as this Court that, the Magistrate has no power to recall or review his own order, I am of the opinion that, once the 'B' report is accepted, thereafter the question of Magistrate proceeding with the matter does not arise.
Accordingly, the petition is allowed. The proceedings on the file of the learned Magistrate are quashed. However, if the complainant has any other material to proceed against the accused, it is open to him.