Magistrate cannot recall his order.

Civil Law

The magistrate cannot recall his order

Adalat Prasad


Rooplal Jindal & Ors.

Para … It is true that if a Magistrate takes cognizance of an offense, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of a provision of Sections 200 & 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage 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 the Code.

Therefore, in our opinion, the observation of this Court in the case of Mathew (supra) that for recalling an order of issuance of process erroneously, no specific provision of law is required would run counter to the Scheme of the Code which has not provided for review and prohibits interference at interlocutory stages. Therefore, we are of the opinion, that the view of this Court in Mathew’s case (supra) that no specific provision is required for recalling an erroneous order, amounting to one without jurisdiction, does not lay down the correct law. In view of our above conclusion, it is not necessary for us to go into the question of whether an order issuing a process amounts to an interim order or not.

If during the inquiry Court finds the matter to be barred by jurisdiction, what shall the Court do?

As per sec.201 of Cr.P.C.: if the complaint is made to a Magistrate, who is not competent to take cognizance of the offense, he shall

  • If the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect.
  • If the complaint is not in writing, direct the complainant to the proper Court.

To decide competency as well as the jurisdiction of Criminal Court in respect of inquiry and trial, provision of Chapter 13 sec. 177 to 189 of Cr.P.C. is also required to take into consideration.

Whether Charge-sheet filed in non-cognizable offense to be treated as complaint u/s 2(d) CrPC?

Yes, Charge-sheet filed in non-cognizable offenses has to be treated as complaint u/s 2(d) CrPC, and the magistrate may take cognizance by proceeding as a complaint case. Relevant judgment is Rambabu Kushwah vs. State of UP, 2014 (84) ACC 198 (ALL).

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