In an unique order passed by the Patna High Court on Wednesday, the Division bench of Chief Justice Amreshwar Pratap Sahi and Justice Rajeev Ranjan Prasad recalled an earlier order passed by a division of the high court on July 23, 2018.
The Petitioner, Rahul Kumar Pandey through Advocate, Prashant Kumar had sought the review and recall of the said order whereby the division bench lead by the then Chief Justice of the Patna High Court took cognizance of a letter written by the Opposite Party no. 2, Sharda Devi, alleging that the Petitioner had forged and fabricated documents and got a Jamabandi created in respect of a piece of land which she had purchased. She also alleged therein that the Petitioner, with an intention to damage her reputation, had lodged a Complaint under Section 156(3) of CrPC, on which the CJM had directed for lodging of the FIR.
Taking cognizance of the letter as a PIL petition, that Division Bench directed the District Judge to examine the matter and proceed in accordance with law. The said inquiry culminated into a direction stating that no criminal offence was attracted on the complaint and FIR was not required to be registered on the basis of complaint made by the Petitioner herein.
That order passed on July 23, 2018 was recalled by the bench headed by the present Chief Justice, holding that the Court cannot scuttle investigation when FIR is yet to be registered.
The Review Petitioner submitted that the procedure directed to be followed by that Division Bench in the aforesaid order was unknown to criminal jurisprudence and suffered from procedural error, inasmuch as, the same was passed without giving any notice to him. He also submitted that at the stage of Section 156 (3) CrPC, any order passed by the Magistrate does not adversely affect the right of any person and the accused does not have any right to be heard, as it is a pre-cognizance stage.
It was also contended that in the present case the FIR was yet to be registered and by no stretch of imagination, that Division Bench could have directed for conducting an inquiry in the matter by the District Judge, when the FIR was yet to be registered and the Police had to investigate and submit a report to the court of Chief Judicial Magistrate.
Concurring with the aforementioned submissions, the Court held that the impugned order suffered from violation of the principles of natural justice and a procedural error as no notice whatsoever was issued to the Petitioner.
The Bench also agreed with the submission that Section 156(3) CrPC is a pre cognizance order. "It is only when the FIR is registered, it is open for the person against whom the FIR has been lodged to seek a remedy under Article 226 of the Constitution of India. In the present case, thus, we find that the Hon'ble Division Bench of this Court had no reason to scuttle the investigation even as FIR was yet to be registered", the bench said. Reliance was placed on judgment of the Supreme Court in Suresh Chand v. State of Madhay Pradesh, (2001) 2 SCC 628.
Thus the court decided that the division bench had committed a mistake which it required to remedy in the interest of justice by recalling the impugned order. Reliance was placed on Municipal Corporation of Greater Mumbai v. Pratibha Industries Ltd., (2019) 3 SCC 203, wherein the Supreme Court held that the high court being a constitutional Court of Record has inherent power to recall its order.
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