INTRODUCTION:
The Magistrate is a significant part of the judiciary and the Magistrate must use their powers in an appropriate mode to ensure the effectiveness of the judiciary. It has to be ensured that Magistrate exercises all their powers and at the same does time does not exceed any powers granted to them. The main question of the issue is whether a magistrate can recall his order under Section 156 of the Criminal Procedure Code if it was obtained through fraud. The meaning of “fraud” is that any act is committed with an intent to deceive another party which includes the concealment of facts.[1]
SECTION 156 OF CRIMINAL PROCEDURE CODE:
It is important to understand Section 156 of the Criminal Procedure Code to answering this question. Section 156 of the Criminal Procedure Code deals with the power of the police officer to investigate a cognizable offence. This provision provides power to the police officer to investigate any cognizable offence that has happened in their local jurisdiction without the order of the Magistrate. Section 156(3) allows the Magistrate to order such an investigation. The Magistrate, if they are empowered under Section 190, can order such investigation.[2]
The power under this Section is independent and it even allows the Magistrate to reopen the case and can order investigation even after the final report has been submitted by the police officers.[3] This power allows the magistrate to keep a check on the actions of the police, it allows the Magistrate to ensure that police are doing their work properly. If the Magistrate feels that the police are not doing an investigation or the investigation is not satisfactory they can order for re-investigation under this Section.
WHETHER A MAGISTRATE CAN RECALL HIS OWN ORDER U/S 156(3) OF CRPC IF IT WAS OBTAINED BY FRAUD?
This is a very important question in this aspect as it helps us to understand the powers of the Magistrate appropriately. The common understanding is that the Magistrate does not have the power to recall or review his own order under the Code of Criminal Procedure. This question was answered in a recent judgment by the Bombay High Court, Dr. Deepak v. Dr. Sriram, which held that the Magistrate can recall his order under Section 156 of Cr. P.C if it is obtained by fraud.
In this case, the petitioner omitted certain facts and has concealed certain facts; the Magistrate also believing the petitioner ordered an investigation under Section 156 of the Code of Criminal Procedure. The petitioner has contended that the Magistrate cannot vitiate the basic principles of the Criminal Procedure Code and cannot recall his order. They argued that the Magistrate is committing a gross case of illegality by as the Magistrate had no jurisdiction to recall his order. They argued that it was a miscarriage of justice as there is no power under Cr.P.C. A common principle which is being followed is that a Magistrate does not have any power under Cr.P.C to recall, review or reconsider his own order, howsoever illegal it might be. They placed their reliance on the previously provided judgments on this behalf, like Subramanian Sethuraman v. the State of Maharashtra.[4]
The Court held that this case is different from the above-mentioned case. The Judges held that “Fraud vitiates everything”. In the present case, the issue was not to decide the matter of illegality but the order was not procured by concealing the important facts. The order was obtained by committing fraud, which vitiates everything. In the present case, the petitioner did not inform about the police complaint and has approached a different magistrate by concealing this important fact. Thus the Court held that the Magistrate recalling his own order, in this case, does not amount to any illegality as the order was obtained by fraud. The case was not dealing with the issue of jurisdiction and it was a simple case of fraud and following the trite principle, “fraud vitiates everything” the Magistrate was allowed to recall his own order.
[1] Section 17 of Indian Contracts Act
[2] Section 156 of Cr.P.C
[3] State of Bihar v. A.C.Saldanna
[4] (2004) 13 SCC 324
This Article is Authored by Sri Sai Kamalini M.S., 4th Year B.A.LL.B (Hons), Student of School of law, SASTRA.
Also Read – What are the Powers of Magistrate in India?
