Recalling own order by magistrate under collusion with accused
Guest
(Querist) 04 February 2012
This query is : Resolved
An order was passed by the link M.M. in a fresh complaint and he fixed the matter for pre summoning evidence.
Now just before the date complainant filed list of witnesses alongwith application to summon the witnesses listed.
now the regular M.M. says that she would like to re appreciate the complaint, whether to take or not to take pre summoning evidence.
Is it permissible, after cognizance and fixing the matter for pre summoning evidence.
Can we make a complaint against M.M. for collusion with accused under 120 IPC ?
Devajyoti Barman
(Expert) 04 February 2012
Mere filing a case and getting the number of the case does not mean that the court has taken cognizance of case.
Cognizance of case has no definition in CRPC and in absence of its definition it is presumed to have happened when the Magistrate first apply his mind to the alleged commission of offence.
Now the pre summoning evidence u/s 202 CRPC is undertaken to determine whether the cognizance would be taken or not. Without taking evidence u/s 202 crpc the Magistrate can not dismiss complaint.
So what the regular MM is saying is not right.
Advocate. Arunagiri
(Expert) 04 February 2012
If the contents of the complaint reveals the names of designation of the witness, the court will order summon to witnesses.
Advocate M.Bhadra
(Expert) 04 February 2012
U/sec.202 Cr.P.C. Magistrate can stop the issue process and transfer to the police for investigation.
Raj Kumar Makkad
(Expert) 04 February 2012
Complainant is required to be examined first and only then court shall summon the ohter witnesses though court cannot refuse but complainant should also not refuse to depose his evidence first and should immediately stop making false allegations against such magistrate at least of corruption when even complaint has not been taken on cognizance.
Kirti Kar Tripathi
(Expert) 04 February 2012
agreeing with experts that prior summing of an accused, court has to apply its mind but complaint can not be refused unless evidence under section 202 Cr.P.C is undertalen
Guest
(Querist) 05 February 2012
I AM OBLIGED BY THE ANSWERS BUT THE QUESTION REMAINS UNANSWERED, THAT,
CAN M.M. REVERT HER OWN ORDER PASSED FOR TAKING PRE SUMMONING EVIDENCE ?
M.M. SAID, THAT SHE WOULD AGAIN STUDY THE COMPLAINT AND REVIEW THE ORDER PASSED BY COURT EARLIER.
Advocate. Arunagiri
(Expert) 05 February 2012
Magistrate is not having any power to review her own orders. There is no such a provision in cr.p.c.
But you are not clear in providing the order entered in the docket or diary.
V R SHROFF
(Expert) 05 February 2012
I you give details of u/s of IPC, a pvt complain is lodged, and whether MM sent it for Police inquiry u/s 202, after verification of Complainant
Your query indicate there was no order.
Or you refer that ORDER, here to attract. under Cr.P.C. [ Supreme Court 2001 vol 1 Pg 169]
prabhakar singh
(Expert) 05 February 2012
IN ORDER TO HAVE RIGHT GUIDANCE YOU ARE ADVISED TO POST HERE BOTH ORDERS TO AVOID CONFUSIONS ARISING DUE GUESSES.
Guest
(Querist) 05 February 2012
THE ORDR IS REPRODUCED AS BELOW:
"FRESH COMPLAINT RECIEVED UNDER SECTON 190 CRPC R/W 195A CRPC BY WAY OF TRANSFER.
IT BE CHECKED AND REGISTERED.
AT REQUEST OF COMPLAINANT ADJOURNED FOR 01 FEB 2012 FOR PRE SUMMONING EVIDENCE."
LATER ON, BEFORE THE DATE, COMPLAINANT FILED AN APPLICATION U/S 202 TO CALL UPON CERTAIN WITNESSES AND ALSO FILED A LIST OF WITNESSES ALONGWITH.
MAGISTRATE REFUSED TO DISPOSE OF THE SAME ON THE SAME DAY AND SAID THAT SHE WOULD AGAIN STUDY THE COMPLAINT, WHETHER THE EVIDENCE/WITNESS IS TO BE TAKEN OR NOT?
THEN COMPLAINANT POINTED OUT, ABOUT THE ORDER PASSED FOR PRE SUMMONING EVIDENCE ALREADY AND ALSO ARGUED THAT AT THIS STAGE M.M. CANT REFUSE TO EXAMINE WITNESSES CALLED UPON BY COMPLAINANT.
THE MAGISTRATE REPLIED THAT, SHE WOULD RE- CONSIDER THE MATTER AND AS THE EARLIER ORDER WAS PASSED BY ANOTHER M.M. INASMUCH SHE WAS ON LEAVE THAT DAY, SO THAT IS NOT BINDING ON HER AND SHE COULD ALTER THAT ORDER PASSED EARLIER FOR P.S.E.
THIS ALL WAS ARGUED ORALLY BY BOTH COMPLAINANT AND M.M.
THE ORDER ON APPLICATION FOR WITNESSES IS YET TO BE PASSED AND APPREHENSION IS THAT,
CAN M.M. STILL REFUSE TOTALLY PRE SUMMONING EVIDENCE, EVEN AFTER THE SAME HAD ALREADY BEEN FIXED ?
PERTINENTLY THE CASE IS AGAINST INFUENTIAL PEOPLE, INCLUDING MCD COMMISSIONER FOR COMMITTING OFFENCES UNDER 420, 467, 468, 194 IPC ETC.
Advocate. Arunagiri
(Expert) 05 February 2012
The magistrate is bound by the orders passed by another magistrate.
The magistrate is not having any power to review his own or previous orders of his predecessors.
At the most the magistrate can refuse to send summons to some or any witness.
In that case, you can go for revision against the orders. You will succeed in revision.
Or get it transferred to a different court right now.
Guest
(Querist) 05 February 2012
THANKA A LOT ARUNAGIRI SIR,
THE COMPLAINANT WITHOUT LOSING TIME ALSO APPEARED BEFORE A.C.M.M. AND COMPLAINED ABOUT THE ATTITUDE OF THE M.M.
HE ALSO REQUESTED ORALLY TO TRANSFER THE CASE TO ANOTHER COURT.
A.C.M.M. REFUSED.
KINDLY GUIDE ME, UNDER WHICH SECTION, THE COMPLAINANT CAN FILE AN APPLICATION FOR TRANSFER OF THE CASE TO ANOTHER COURT AND BEFORE WHOM?
Guest
(Querist) 05 February 2012
WE HAVE ONLY TODAY'S TIME. TOMORROW IS THE DOOMS DAY, SO KINDLY GUIDE ME, WHETHER WE CAN APPROACH TO HIGH COURT UNDER 482 OR 226 FOR TRANSFER OF THE CASE ?
SKJ IS RIGHT, NOW PLEASE, WE HAVE LITTLE TIME.
Advocate. Arunagiri
(Expert) 05 February 2012
You can not approach HC at this stage.
See the relevant portion of Cr.p.c.
408. Power of Sessions Judge to transfer cases and appeals.
(1) Whenever it is made to appear to a Sessions Judge that an order under this sub-section is expedient for the ends of justice, he may order that any particular case be transferred from one Criminal Court to another Criminal Court in his sessions division.
(2) The Sessions Judge may act either on the report of the lower Court, or on the application of a party interested or on his own initiative.
(3) The provisions of sub-sections (3), (4), (5), (6), (7) and (9) of section 407 shall apply in relation to an application to the Sessions Judge for an order under sub-section (1) as they apply in relation to an application to the High Court for an order under sub-section (1) of section 407, except that sub-section (7) of that section shall so apply as if for the words "one thousand" rupees occurring therein, the words "two hundred and fifty rupees" were substituted.
You may take the help of an advocate. I think, already you have an advocate.
Guest
(Querist) 05 February 2012
THANKS A LOT ARUNAGIRI SIR.
I SHALL REMAIN OBLIGED.
I AM COMPLAINANT IN THIS CASE AND YOUR VALUABLE SUGGESTIONS AND ATTITUDE, TO SUPPORT INSTANTLY, MAKES ONE TO BELIEVE THAT, HUMANITY STILL PERSISTS.
AGAIN THANKS A LOT SIR.
