August 23, 2018
Case name: Dr.Deepak v. Dr.Shriram
The Petitioner in the case was aggrieved by the fact that the Magistrate recalled his own order and thus had committed gross illegality.
The Respondent on the other hand contended that though the Magistrate has set aside his own order, he had clearly demonstrated that the order procured from directing investigation under Section 156 (3) of the Code of Criminal Procedure was a fraud and it was also alleged by the Respondent that material facts and circumstances were suppressed in the case to obtain the order.
Magistrate can recall his Order
The High Court of Bombay in appeal while dismissing the petition, made the following observations in the case:
The Court noted that there cannot be dispute about the trite principle that a Magistrate does not have any power under the Code of Criminal Procedure to recall, review or reconsider his own order.
The Court further note that the aforesaid principle however, does not cover the case of the present nature where it is not a matter of legality or otherwise of the order passed by the Magistrate but the manner in which the order was procured by misleading the Court by suppressing the material facts and circumstances.
In view of the facts and circumstances, the High Court of Bombay noted that this was not a case where a jurisdiction not vested in the Magistrate was invoked by him. It is a case of bare and simple fraud practised upon the Court and it is trite that fraud vitiates everything.
Thus, the High Court held that there was no illegality committed by the Magistrate in recalling his own order.
The entire case can be accessed here.