- (1.) B. K. Rathi, J. This revision was filed under Sections 397/401, Cr. P. C. against the order dated 20-12-1996 passed by XIth A. C. J. M. , Allahabad.
(2.) THE facts of the case are that the revisionist moved an application against the opposite parties under Section 156 (3), Cr. PC. That application was allowed by the learned A. C. J. M. by order dated 12-7-1996. However, when the order reached at the police station, the police submitted a report that the cause of action for this offence arose at Haridwar and therefore, the investigation should also be done at Haridwar. On this report, the learned Magistrate considered the matter and by order dated 20-12-1996 he recalled the order. Aggrieved by that order the present revision has been filed. THE revision was allowed at the admission stage on 14-7-1999 observing that the learned Magistrate has no jurisdiction to recall the order. Aggrieved by it, the opposite par ties moved an application for recalling of the order of this Court dated 14-7- 1999. THE order was exparte and therefore, it was recalled by the order dated 17-12- 1999. THErefore, this revision has again came before me for hearing. Ave Sri R. B. Sahai learned coun sel for the revisionist, Sri B. Malik, learned counsel for the opposite party Nos. 1 and 2 and the learned A. G. A. It is contended by the learned coun sel for the revisionist that there is no provision under Cr. P. C. to recall the order. That therefore, the order of the learned Magistrate dated 20-12-1996 is without jurisdiction. That once the case was registered by the order of the Magistrate it was the duty of the police to investigate the case and to submit either the charge sheet or the final report. That it was beyond the jurisdiction of the police to request to the Magistrate to recall its own order.
(3.) NO doubt it is true that there is no provision under the Cr. P. C. for recall of the order. However, if an order is without jurisdiction it can always be recalled. Clause (3) of Section 156, Cr. P. C. provide "that any Magistrate empowered under Section 190 may order such an investiga tion as above mentioned. " Under Section 190, Cr. P. C. the Magistrate having juris diction only can take cognizance. There fore, the Magistrate having jurisdiction to take cognizance of the offence alone could pass an order under Section 156 (3), Cr. P. C. If the Magistrate has no jurisdiction to take cognizance of the offence but has passed the order under Section 156 (3), Cr. P. C. The said order is without jurisdiction and may be recalled by the Magistrate. In this case the learned Magistrate had thoroughly considered the facts of the case, the allegations made in the applica tion under Section 156 (3), Cr. P. C. and the report of the police in the order dated 20-12-1996. After considering all the facts he came to the conclusion that the entire cause of action arose at Haridwar, there fore, his order under Section 156 (3), Cr. P. C. was without jurisdiction. The learned Magistrate therefore recalled the order. "there is no illegality in the order. ";