Atique Ahmad vs State Of U.P.
2023 Latest Caselaw 1983 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Court No. - 87							AFR
 

 
Case :- Criminal Revision No.65 of 2023
 
Revisionist :- Atique Ahmad
 
Opposite Party :- State of U.P.
 
Counsel for Revisionist :- Chandrakesh Mishra, Abhishek Kumar Mishra, Shadab Ali, Sr. Advocate
 
Counsel for Opposite Party :- G.A.
 
Hon'ble Dinesh Kumar Singh, J.

1. The present criminal revision under Section 397 (1) read with Section 401 Cr.P.C. has been instituted by Atique Ahmad, revisionist against the order dated 17.11.2022 passed by the Additional Sessions Judge/Special Judge(MP/MLA), Allahabad in Criminal Revision No.249 of 2008, whereby the learned revisional court allowed the criminal revision filed by the State against the order dated 7.3.2008 passed by the Additional Civil Judge/Judicial Magistrate, Court No.6, Allahabad.

2. The facts of the case, in brief, are that on 5.7.2007 Sri Ompal, a member of the Zila Panchayat, Allahabad lodged FIR No.270 of 2007, under Sections 147, 148, 323, 341, 342, 364, 504 and 506 IPC and Section 7 Criminal Law Amendment Act against the revisionist, a sitting Member of Parliament and others. The investigation of the said offence was conducted by Sri K.K. Mishra, Station House Officer.

3. During the course of investigation, efforts were made by the Investigating Officer to arrest the accused-revisionist, however, the accused could not be arrested nor they surrendered before the trial court. Warrants were issued against the accused and, thereafter, proceedings under Section 82/83 Cr.P.C. were undertaken. However, the accused could not be arrested nor they surrendered before the trial court within the prescribed time. In view thereof, an FIR under Section 174A IPC was registered on 26.8.2007.

4. The Investigating Officer after investigating the offence, filed an application for submitting the charge sheet and prosecuting the accused, including the revisionist. Learned Magistrate granted permission for submitting the charge sheet and, thereafter, charge sheet was submitted on 13.9.2007 by the Investigating Officer in the court. One application was also filed along with the charge sheet stating that as per the provisions of Section 195 Cr.P.C. read with Section 340 Cr.P.C., the court may send the charge sheet in its signature to the competent court for taking cognizance. The trial court without deciding the application dated 13.11.2007 filed by the Investigating Officer, took cognizance of the charge sheet on 16.1.2008 and ordered for preparing the copies of the documents.

5. co-accused Aizaz Akhtar surrendered before the trial court and filed an application for bail. The said accused was taken into custody and his application for bail was rejected. Thereafter, his bail application was allowed by the Sessions Court. The present revisionist was arrested by the police and he was sent to judicial custody. Co-accused Ashraf @ Kale was still absconding.

6. It appears that an application came to be filed after change of the presiding officer in the court of Additional Civil Judge/Judicial Magistrate, Allahabad against the order dated 6.1.2008 and the presiding officer as siting in appal against its own order, held that the objection could be entertained on behalf of the accused against the cognizance taken by the court when the objection would go at the bottom of the jurisdiction of the court. Learned Magistrate has held that provisions of Section 195 Cr.P.C. could not have been evaded and the order of taking cognizance dated 16.1.2008 was without jurisdiction and void ab initio.

7. It was further held that since the order of cognizance was void ab initio and remand under Section 309 Cr.P.C. would no longer be accorded and the application for remand was rejected vide order dated 7.3.2008.

8. Aggrieved by the said order, the State has filed Criminal Revision No.249 of 2008 and the learned revisional court has held that vide impugned order, the learned Magistrate had reviewed its own order of taking cognizance. It is well settled that the criminal court does not have power to review its own order. Learned revisional court had set aside the order dated 7.3.2008 impugned in the present revision.

9. Heard Sri Daya Shanker Mishra, learned Senior Advocate assisted by S/Sri Abhishek Kumar Mishra and Shadab Ali, learned counsel for the revisionist and Sri Manish Goyal, learned Additional Advocate General assisted by Sri Sanjay Kumar Singh, learned AGA for the State.

10. Sri Daya Shankar Mishra, learned Senior advocate for the revisionist has submitted that cognizance for an offence under Section 174A IPC could not be taken without complying the provisions of Section 195 Cr.P.C. He has further submitted that the charge sheet was filed in the court on a police report and the Investigating Officer filed an application for forwarding the said report to the concerned court. However, learned Magistrate did not take decision on the application of the Investigating Officer and took cognizance himself and ordered for issuing copies of the documents. He has further submitted that the remand under Section 309 Cr.P.C. in such a case where the order of cognizance on the face of record is void and could not have been passed. He has, therefore, submitted that the learned Magistrate has not committed any error of jurisdiction or law which required the revisional court to interfere with the well reasoned order dated 7.3.2008 refusing the remand of the accused-revisionist.

11. Learned Senior Advocate for the revisionist has further submitted that the order of cognizance is not a final order and on an application, the court concerned can cancel/recall the said order. Learned trial court on the application of the accused-revisionist has recalled the order finding that the order of taking cognizance was void ab initio as it was passed in violation of Section 195 Cr.P.C. He has also submitted that the revisionist was not given opportunity of hearing by the revisional court and, therefore, the order impugned is bad in law inasmuch as the accused-respondent was required to be heard as provided in Section 401 Cr.P.C. and it is in violation of principles of natural justice.

12. Sri Daya Shanker Mishra in support of his contention has placed reliance on the following judgements:-

"1.Sunil Tyagi Vs. Government of NCT of Dehi, (2021) 0 Supreme (Del) 831 ;

2. Pepsi Foods Ltd. & Another Vs. Special Judicial Magistrate & other, (1998) 5 SCC 749 ;

3. Dhariwal Tobacco Products Ltd. and Ors. v. State of Maharashtra and another; (2009) 2 SCC 370 : and

4. Vishnu Agarwal Vs. State of U.P. and another, (2011) 14 SCC 813.

5. Madhu Limaye and others Vs. Unknown, (1969) 1 SCC 292.

6. Inder Mohan Goswami and another vs. State of Uttaranchal, (2007) 12 SCC 1"

13. On the other hand, Sri Manish Goyal, learned Additional Advocate General has submitted that the order of taking cognizance is a final order. Under Section 362 Cr.P.C. there is a specific bar for reviewing its own order by the criminal court. He has further submitted that the learned trial court has not only refused remand of the accused-revisionist under Section 309 Cr.P.C., but also reviewed the order passed by the same court (however by another presiding officer) and held that the order of taking cognizance was void ab initio. It has been further submitted that such a course was not opened to the learned Magistrate inasmuch as he is not empowered to review its earlier order. It has also been submitted that the order taking cognizance and issuing process is a final order and it is not an interlocutory order, which can not be recalled or reviewed by the same court.

14. Learned Additional Advocate General has further submitted that the impugned order itself would show that the accused-revisionist was given several opportunities for making submissions. However, the accused avoided to address the arguments. He has, therefore, submitted that the revisional court has not committed any error of jurisdiction or law in setting aside the order passed by the learned Magistrate inasmuch as the order passed by the learned Magistrate would amount to an order in appeal or reviewing its own order, which is not permissible under the law. He has submitted that in view thereof, the present revision has no merit, which is liable to be dismissed.

15. I have considered the submissions advanced on behalf of the learned counsel for the parties and perused the record.

16. For the sake of argument, Section 362 Cr.P.C. reads a under:-

"362. Court not to after judgement. Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error."

17. Thus, there is a specific bar for reviewing its own order by the criminal court. The power of review is a statutory power and if the court reviews its own order, then it would be a nullity and without jurisdiction.

18. From perusal of the order dated 7.3.2008 passed by the learned Additional Civil Judge/Judicial Magistrate, Allahabad, it is evident that the learned Magistrate while considering the application filed by the accused-revisionist against the order of taking cognizance, has decided the application as if he was exercising the appellate jurisdiction or review jurisdiction. Learned Magistrate has held the earlier order taking cognizance dated 16.1.2008 was void ab initio. Such a course is completely barred under the provisions of Section 362 Cr.P.C.

19. The order taking cognizance or issuing process is not an interlocutory order as held by the Supreme Court in the case of Adalat Prasad Vs. Roopal Jindal and others, (2004) 7 SCC 338. In the said judgement, the Supreme Court held that the view taken by this Court in the case of K.M. Mathew Vs. State of Kerala, (1992) 1 SCC 217 that it would be open to the court issuing summons to recall the same on being satisfied that the issuance of summons was not in accordance with law and order of issuing process is an interim order and not a judgement and, therefore, it can be varied or recalled, is not a correct view. Paragraphs 14, 15 and 16 of the said judgement, which would be relevant, are extracted hereunder:-

"14. But after taking cognizance of the complaint and examining the complainant and the witnesses if he is satisfied that there is sufficient ground to proceed with the complaint he can issue process by way of summons under Section 204 of the Code. Therefore, what is necessary or a condition precedent for issuing process under Section 204 is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry contemplated under Section 202 that there is sufficient ground for proceeding with the complaint hence issue the process under Section 204 of the Code. In none of these stages the Code has provided for hearing the summoned accused, for obvious reasons because this is only a preliminary stage and the stage of hearing of the accused would only arise at a subsequent stage provided for in the latter provision in the Code. It is true as held by this Court in Mathew case [(1992) 1 SCC 217:1992 SCC (Cri) 88] that before issuance of summons the Magistrate should be satisfied that there is sufficient ground for proceeding with the complaint but that satisfaction is to be arrived at by the inquiry conducted by him as contemplated under Sections 200 and 202, and the only stage of dismissal of the complaint arises under Section 203 of the Code at which stage the accused has no role to play, therefore, the question of the accused on receipt of summons approaching the court and making an application for dismissal of the complaint under Section 203 of the Code on a reconsideration of the material available on record is impermissible because by then Section 203 is already over and the Magistrate has proceeded further to Section 204 stage.

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 provisions of Sections 200 and 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.

16. Therefore, in our opinion the observation of this Court in the case of Mathew [(1992) 1 SCC 217 : 1992 SCC (Cri) 88] that for recalling an erroneous order of issuance of process, 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 case [(1992) 1 SCC 217 : 1992 SCC (Cri) 88] that no specific provision is required for recalling an erroneous order, amounting to one without jurisdiction, does not lay down the correct law."

20. The Supreme Court in the case of Mohammed Zakir Vs. Shabana and others, (2018) 15 SCC 316 has held that a criminal court can not make correction of a final order on merits howsoever patently erroneous the earlier order be. Such an order can only be corrected in the process known to law and not under Section 362 Cr.P.C. Paragraphs 2 and 3 of the said judgement are extracted hereunder:-

"2. The appellant is aggrieved since the High Court passed an order under Section 362 CrPC dated 28-4-2017 [Mohd. Zakir v. Shabana, 2017 SCC OnLine Kar 4719] recalling its own order dated 18-4-2017 [Mohd. Zakir v. Shabana, 2017 SCC OnLine Kar 1000 : (2017) 2 CCC 515 (1)] . The order dated 28-4-2017 [Mohd. Zakir v. Shabana, 2017 SCC OnLine Kar 4719] reads as under:

"Notwithstanding Section 362 CrPC the order rendered by this Court earlier on 18-4-2017 [Mohd. Zakir v. Shabana, 2017 SCC OnLine Kar 1000 : (2017) 2 CCC 515 (1)] is found to be patently erroneous and therefore the order is withdrawn. The petition is restored to file and the registry is directed not to webhost the order passed earlier and to take note of the fact that the order is withdrawn."

3. The High Court should not have exercised the power under Section 362 CrPC for a correction on merits. However patently erroneous the earlier order be, it can only be corrected in the process known to law and not under Section 362 CrPC. The whole purpose of Section 362 CrPC is only to correct a clerical or arithmetical error. What the High Court sought to do in the impugned order is not to correct a clerical or arithmetical error; it sought to rehear the matter on merits, since, according to the learned Judge, the earlier order was patently erroneous. That is impermissible under law. Accordingly, we set aside the impugned order dated 28-4-2017."

21. From the aforesaid discussion, it is evident that the order of taking cognizance is a final order and whether it is erroneous order or not, can be looked into by the superior court in appropriate proceedings and not by the same court, which has taken cognizance.

22. In view thereof, I am of the view that the order under challenge in the present revision does not suffer from any illegality or error of jurisdiction or law. Learned Magistrate has no power to review the earlier order dated 16.1.2008 taking cognizance and, therefore, I find no merit in the present revision, which is hereby dismissed.

( Dinesh Kumar Singh, J.)

Order Date: 19.01.2023

Rao/-