Case Note & Summary
The petitioner, Dr. Deepak Kesari, filed a criminal writ petition challenging the orders of the Magistrate and the Additional Sessions Judge. The Magistrate had initially directed investigation under Section 156(3) CrPC on an application by the petitioner, but later recalled that order. The petitioner argued that the Magistrate had no power to recall his own order. The High Court examined the submissions and relied on Supreme Court judgments in Subramanium Sethuraman v. State of Maharashtra and Iris Computers Limited v. Askari Infotech Private Limited. The court noted that an order under Section 156(3) CrPC is administrative in nature and does not require notice to the accused. However, if such an order is passed without notice, the Magistrate has inherent power to recall it in the interest of justice. The High Court found that the Magistrate's recall order was justified as the petitioner had not disclosed that he had already filed a private complaint. The revision before the Sessions Judge was also dismissed. The High Court dismissed the writ petition, holding that the Magistrate had the power to recall the order and that no illegality was committed.
Headnote
A) Criminal Procedure - Recall of Order under Section 156(3) CrPC - Power of Magistrate - The Magistrate has inherent power to recall an order passed under Section 156(3) CrPC if it was passed without notice to the accused, as such an order is administrative in nature and not a judicial order - The court held that the Magistrate's order recalling the earlier direction for investigation was not illegal, and the revision against it was rightly dismissed (Paras 2-6).
Issue of Consideration
Whether a Magistrate has the jurisdiction and power to recall an order passed under Section 156(3) of the Code of Criminal Procedure, 1973 directing investigation, when the order was passed without notice to the accused.
Final Decision
The High Court dismissed the criminal writ petition, holding that the Magistrate had the power to recall the order under Section 156(3) CrPC and that the impugned orders did not suffer from any illegality.
Law Points
- Magistrate has inherent power to recall order under Section 156(3) CrPC if passed without notice to accused
- Section 156(3) CrPC does not contemplate notice to accused before directing investigation
- Order under Section 156(3) CrPC is an administrative order and can be recalled in exceptional circumstances
Case Details
2018 LawText (BOM) (08) 46
Criminal Writ Petition No. 269 of 2017
Mr. S.S. Kazi for petitioner, Mr. J.M. Murkute for respondents no.1 and 2, Mr. V.M. Kagne, APP for respondents no.3 to 5
Dr. Deepak S/o Vasantrao Kesari
Dr. Shriram S/o Mukundrao Kalyankar and Others
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Nature of Litigation
Criminal writ petition challenging the order of Magistrate recalling direction for investigation under Section 156(3) CrPC and the order of Additional Sessions Judge dismissing revision against it.
Remedy Sought
Petitioner sought quashing of the Magistrate's order dated 15/10/2015 recalling the earlier order dated 8/6/2015 directing investigation, and the order of Additional Sessions Judge dismissing the revision.
Filing Reason
Petitioner alleged that the Magistrate had no jurisdiction to recall his own order under Section 156(3) CrPC.
Previous Decisions
Magistrate initially directed investigation under Section 156(3) CrPC on 8/6/2015, but later recalled that order on 15/10/2015. The Additional Sessions Judge dismissed the revision against the recall order.
Issues
Whether a Magistrate has the power to recall an order passed under Section 156(3) CrPC directing investigation?
Whether the impugned orders suffer from illegality?
Submissions/Arguments
Petitioner argued that the Magistrate had no jurisdiction to recall his own order under Section 156(3) CrPC, relying on Subramanium Sethuraman v. State of Maharashtra and Iris Computers Limited v. Askari Infotech Private Limited.
Respondents argued that the Magistrate had inherent power to recall the order as it was passed without notice to the accused and was administrative in nature.
Ratio Decidendi
An order under Section 156(3) CrPC directing investigation is administrative in nature and does not require notice to the accused. However, if such an order is passed without notice, the Magistrate has inherent power to recall it in the interest of justice. The Magistrate's recall order was justified as the petitioner had not disclosed the filing of a private complaint.
Judgment Excerpts
The learned advocate for the petitioner vehemently submits that the learned Magistrate had rightly directed investigation under Sub Section 3 of Section 156 of the Code of Criminal Procedure... but has committed a gross error... when the self same Magistrate without having any power under the Code of Criminal Procedure recalled his earlier order.
He referred to and relied upon the judgment of the Supreme Court in the case of Subramanium Sethuraman V/s State of Maharashtra and another; (2004) 13 SCC 324 and Iris Computers Limited V/s Askari Infotech Private Limited and others; (2015) 14 SCC 399.
Procedural History
The petitioner filed an application (OMCA No.522/2015) before the Magistrate seeking investigation under Section 156(3) CrPC. The Magistrate allowed the application on 8/6/2015 and directed investigation. Subsequently, on 15/10/2015, the Magistrate recalled that order. The petitioner filed a revision before the Additional Sessions Judge, which was dismissed. The petitioner then filed the present criminal writ petition before the High Court.
Acts & Sections
- Code of Criminal Procedure, 1973: 156(3)
