Respondent to criminal revision preferring writ petition. Court held Magistrate lacked power to set aside his own summoning order of his previous date as Section 362 Cr.P.C. permits only clerical/arithmetic corrections, not merits-based rehearing. Petition dismissed.
Writ petition dismissed; interim order vacated.
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Court No. - 41
Case :- CRIMINAL MISC. WRIT PETITION No. - 7336 of 2000
Petitioner :- Manoj Kumar Rajput Respondent :- State Of U.P. & Others Counsel for Petitioner :- K.M. Asthana Counsel for Respondent :- Govt. Advocate,R.C. Srivastava
Hon'ble Aniruddha Singh,J.
Heard Sri Gyanesh Kumar Mishra, Advocate holding brief of Sri K.M. Asthana, learned counsel for the petitioner, learned AGA and perused the record.
This writ petition has been preferred against order dated 25.10.2000 passed by V Additional Sessions Judge, Bijnor in Criminal Revision No. 119 of 1999( Jaswant Singh vs. State and others) whereby revision was allowed and order dated 31.5.1999 passed by III Additional Chief Judicial Magistrate has been set aside.
In brief, the facts of the case are that one case was registered and after investigation Final Report was submitted, against which protest petition was filed by the complainant; vide order dated 29.8.1998 Final Report was dismissed and accused Yashpal Singh, Manoj Kumar and Aditya Kumar were summoned under Sections 461, 408, 34 IPC and cognizance was taken by the Magistrate concerned. Subsequently, accused moved an application to reject summoning order dated 29.8.1998 passed by Ist Additional Chief Judicial Magistrate, Bijnor which was allowed vide impugned order dated 31.5.1999 by IIIrd Additional Chief Judicial Magistrate, Bijnor and summoning order dated 29.8.1998 was quashed and Final Report was accepted. Against order dated 31.5.1999, one Revision bearing No.119 of 1999 was preferred and that was allowed quashing order dated 31.5.1999 by Vth Additional Sessions Judge, Bijnor vide order dated 25.10.2000 Hence this writ petition.
Plain question before this writ Court is that whether Magistrate has power to set aside his own summoning order which was passed by himself ?
Hon'ble Apex Court in SLP (Criminal) No. 10102 of 2017 Mohammed Zakir vs. Shabana & others decided on 23.7.2018 has observed in paragraph 4 as under:-
"4. The High Court should not have exercised the power under Section 362 Cr.P.C. 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 Cr.P.C. The whole purpose of Section 362 Cr.P.C. 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 28.04.2017."
In the backdrop of above judgment, this Court is of the opinion that IIIrd Additional Chief Judicial Magistrate, Bijnor had no power to quash summoning order dated 29.8.1998 passed by Ist Additional Chief Judicial Magistrate, Bijnor. This Court finds no infirmity or infirmity in judgment and order dated 25.10.2000 passed by revisional Court.
The writ petition is dismissed. Interim order, if any, stands vacated.
However, it is made clear that this order would not affect the competent Court while deciding the case.
Copy of this order be transmitted to the Court concerned immediately.
Order Date :- 2.8.2018 P.P.
2 issues framed by the court
Whether a Magistrate has the power to set aside his own summoning order of his own previous date?
Whether Section 362 Cr.P.C. can be used to correct an order on merits or only for clerical/arithmetical errors?
Colour shows how this judgement treated each authority
Mohammed ZakirExplained¶9
SLP (Criminal) No. 10102 of 2017 Mohammed Zakir vs. Shabana & others decided on 23.7.2018
1 provisions across 1 enactments
Manoj Kumar Rajput
State Of U.P.
Aniruddha Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
