Raikab Chand Jain vs State

Harilal Agrawal and P.S. Sahay, JJ.—The petitioner has come to this Court against an order dated 18-2-77 passed by the Chief Judicial Magistrate, Patna, recalling him earlier order dated 17-12-76 in the following circumstances. A case was started against the petitioner by the Collector of Customs under the provisions of the Customs Act, 1962 on the allegation that certain contraband articles were recovered from his possession. On 17-12-76 the petitioner filed a petition in the court below stating that the investigation in this case not having been completed within the period of six months, as provided u/s 167(5) of the new Code of Criminal Procedure, (hereinafter referred to as the Code) the investigation in question had got to be stopped and the petitioner be discharged from the case in question. The learned Chief Judicial Magistrate allowed this prayer by his above order dated 17-12-76 and directed that the investigation of the case in question be stopped and the petitioner was discharged from the liability of this case. Later on, a petition was filed on behalf of the prosecution stating that the petitioner was wrongly discharged u/s 167(5) of the Code by order dated 17-12-76. It was contended on behalf of the prosecution that the offence said to have been committed by the petitioner, was, although, previously punishable only upto a period of 2 years, by a subsequent amendment in the year 1963/the period of sentence has been raised to 3 years and, therefore, the provision of Section 167(5) had no application to the facts of this case and accordingly, the earlier order dated 17-12-76 passed by the learned Chief Judicial Magistrate under a wrong assumption of law that the case was covered by Section 167(5) inasmuch as the offence in question was punishable only upon a period of 2 years, was vitiated in law.

The learned Chief Judicial Magistrate, on a consideration of the facts and circumstances, by the impugned order dated 18-2-77, held that the earlier order passed by him was due: to inadvertence "having not been posted with the correct position of law and has got necessarily to be recalled". He accordingly allowed the prayer of the prosecution, recalled the order dated 17-12-77, and issued boilable warrant of arrest against the petitioner.

Long arguments were made on behalf of the petitioner to show that order dated 18-2-77 passed by the learned Magistrate was invalid on merit also and notwithstanding the amendment of the year 1963 the offence still stood tribal by the summary procedure and, therefore, the provisions of Section 167(5) of the Code would still apply to this case. The Learned Counsel appearing on behalf of the opposite party, on the other hand, with reference to the various provisions of the Customs Act, contended that separate machinery was provided under the Customs Act itself and, therefore, the impediment of Section 167(5) of the Code would have no application to this case.

We have examined the contention advanced by the Learned Counsel for both the parties, but as, in our opinion, the matter can be finally disposed of on an entirely different point, it is not necessary to advert to the rival contentions advanced on behalf of the contending parties.

Whatever might be the actual and correct position in law with respect to the application of Section 167(5) of the Code, the fact remains that rightly or wrongly the learned Magistrate had passed an order on 17-12-76 taking a view of that in view of the provisions contained in Section 167(5), the investigation against the petitioner could not proceed and he accordingly discharged him from all liabilities of this case. A question arises as to whether, even assuming that the said order was utterly erroneous, the learned Magistrate could recall the said order and pass the impunge order on taking a different view of the matter. The controversy now stands at rest by an authoritative decision of the Supreme Court in the case of Bindeshwari Prasad Singh v. Kali Singh (supra) where it was observed that there was no provision in the Criminal Procedure Code empowering a Magistrate to review or recall an order passed by him. The inherent power u/s 561A of old Code (corresponding to Section 482 of the new Code) was only given to the High Court and unlike u/s 151 of the CPC subordinate criminal courts have no inherent power. In our opinion, in view of the above authority the learned Chief Judicial Magistrate was not empowered in law to review or recall the earlier order passed by him on 17-12-76 howsoever illegal or erroneous that might have been. This application must, therefore, succeed on this ground alone.

We would accordingly allow this application and set aside the order dated 18-2-77.