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Lalit Mohan Bhattacharjee Vs. Noni Lal Sarkar and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1923Cal662,77Ind.Cas.816
AppellantLalit Mohan Bhattacharjee
RespondentNoni Lal Sarkar and ors.
Excerpt:
criminal procedure code (act v of 1898), sections 204, 369 - order directing summons to issue--magistrate, power of, to rescind order. - .....by him and sent both the cases to a subordinate magistrate for local enquiry and report. the learned district magistrate recommends that either the order directing the issue of summons or the order rescinding that order should be set aside on the ground that the magistrate having formed an opinion that summons should issue under section 204, criminal procedure, code, cannot rescind that order and direct the holding of an enquiry under section 202. we are unable to accept the recommendation of the learned district magistrate. the order passed by the magistrate under section 204 was certainly not a judgment to which the provisions of section 369, criminal procedure code, would be applicable. there is nothing in the code which forbids the magistrate to reconsider an order of this kind.....
Judgment:

1. This is a Reference from the District Magistrate of Howrah recommending that in the alternative one of the two orders by the Sub-Deputy Magistrate of Uluberiah be set aside. A complaint was made before that officer on the 22nd December and he passed a order directing that the two accused persons be summoned. Subsequently on that date one of the persons against whom summons had been ordered to be issued appeared and laid a cross complaint. The Magistrate then rescinded the order passed by him and sent both the cases to a Subordinate Magistrate for local enquiry and report. The learned District Magistrate recommends that either the order directing the issue of summons or the order rescinding that order should be set aside on the ground that the Magistrate having formed an opinion that summons should issue under Section 204, Criminal Procedure, Code, cannot rescind that order and direct the holding of an enquiry under Section 202. We are unable to accept the recommendation of the learned District Magistrate. The order passed by the Magistrate under Section 204 was certainly not a judgment to which the provisions of Section 369, Criminal Procedure Code, would be applicable. There is nothing in the Code which forbids the Magistrate to reconsider an order of this kind on sufficient grounds. In the present case we think that the order passed by him was a right and proper order and that it was not made without jurisdiction. We accordingly are unable to accept this reference.

2. Let the papers be sent down at once.


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