Case Note & Summary
The petitioner, Manohar Onkarappa Mudnaik, filed two criminal writ petitions under Articles 226 and 227 of the Constitution of India challenging the orders passed by the learned First Adhoc Additional Sessions Judge, Nagpur, on 15.09.2004. The learned Judge allowed Criminal Revision Applications No. 123 and 124 of 2003, setting aside the orders passed by the learned Judicial Magistrate First Class, Nagpur, rejecting applications Exhibit 36 in Criminal Complaint No.158 of 1995 and Exhibits 16 and 17 in Criminal Complaint No.321 of 1996 moved by the accused. The facts reveal that the petitioner was the accused in two private complaints filed by respondent No.1 (Kusumkar Rambhau Bidkar) and respondent No.2 (Achelal Ratanlal Tiwari) for offences under Sections 500, 501, 502, 504, 506, 509 of the Indian Penal Code read with Section 34 IPC. The Magistrate had issued process against the petitioner. Subsequently, the petitioner filed applications for recall of process on the ground that the complaints did not disclose any offence and that the process was an abuse of the process of court. The Magistrate rejected those applications. The petitioner then filed criminal revisions before the Sessions Court, which were allowed by the impugned order, setting aside the Magistrate's orders and directing the Magistrate to reconsider the applications. The petitioner challenged the revisional court's order in these writ petitions. The High Court held that the Magistrate has inherent power to recall process if the complaint does not disclose any offence or if the process is an abuse of the process of court. The revisional court erred in holding that the Magistrate had no power to recall process after issuance. The High Court further held that the revisional court should not interfere with a discretionary order of the Magistrate unless it is perverse or illegal. In this case, the revisional court set aside the Magistrate's order without considering the merits of the applications for recall of process. The High Court allowed the writ petitions, set aside the revisional court's order, and remitted the matter back to the Magistrate for fresh consideration of the applications for recall of process on merits.
Headnote
A) Criminal Procedure Code - Recall of Process - Inherent Powers of Magistrate - Section 204, 482 Cr.P.C. - The Magistrate has inherent power to recall process if the complaint does not disclose any offence or if the process is an abuse of the process of court. The revisional court erred in holding that the Magistrate had no power to recall process after issuance. Held that the Magistrate can recall process in appropriate cases to prevent abuse of process. (Paras 3-10) B) Criminal Procedure Code - Criminal Revision - Scope of Revisional Court - Section 397, 401 Cr.P.C. - The revisional court should not interfere with a discretionary order of the Magistrate unless it is perverse or illegal. In this case, the revisional court set aside the Magistrate's order without considering the merits of the applications for recall of process. Held that the revisional court's order was unsustainable and the matter should be remitted back to the Magistrate for fresh consideration. (Paras 11-15)
Issue of Consideration
Whether a Magistrate has the power to recall process issued in a private complaint, and whether the revisional court was justified in setting aside the Magistrate's order rejecting the accused's applications for recall of process.
Final Decision
The High Court allowed the criminal writ petitions, set aside the impugned order of the learned First Adhoc Additional Sessions Judge, Nagpur, dated 15.09.2004, and remitted the matter back to the learned Judicial Magistrate First Class, Nagpur, for fresh consideration of the applications for recall of process on merits, in accordance with law.
Law Points
- Recall of process
- inherent powers of Magistrate
- criminal revision
- private complaint
- defamation
- abuse of process of court
